Event of Loss. (i) The Borrower shall promptly notify the Administrative Agent upon the Borrower having Actual Knowledge of any Event of Loss that the Borrower believes will be a Material Loss. The Administrative Agent shall be entitled at its option to consult in any compromise, adjustment or settlement in connection with any Event of Loss under any policy or policies of insurance or any proceeding with respect to any condemnation or other taking of property of the Borrower or otherwise involving a Material Loss, and, with respect to any Material Loss, the Borrower shall within five (5) Business Days after the Administrative Agent's request reimburse the Administrative Agent for all out-of-pocket expenses (including reasonable attorneys' and experts' fees) incurred by the Administrative Agent in connection with such participation. (ii) If a Material Loss occurs, unless the appropriate Loan Party elects not to restore such Property and such restoration, repair, replacement or rebuilding is not required under Prudent Industry Practice to operate and maintain such Loan Party's business operations at the applicable airport (in which event the Net Insurance Proceeds or Net Condemnation Proceeds, as the case may be, shall be applied to a mandatory prepayment of the Loans in accordance with Section 2.8(c)(iv)), the Borrower shall promptly (and in any event within 30 days after the occurrence of the Event of Loss) deliver to the Administrative Agent a Restoration Plan and, upon approval thereof by the Administrative Agent, commence and diligently pursue the Restoration. If the plan of restoration as submitted by the Borrower does not qualify as a Restoration Plan or is not approved by the Administrative Agent in accordance with this clause, the Borrower and the Administrative Agent shall enter into negotiations in good faith with a view to agreeing on mutually acceptable terms of the Restoration Plan. (iii) Funds on deposit in the Loss Proceeds Account that are to be made available for restoration work pursuant to a Restoration Plan as set forth in clause (ii) above will be disbursed to pay the cost of the Restoration upon receipt by the Administrative Agent of a certificate of the Borrower that: (i) all of the restoration work already completed was done substantially in compliance with the approved Restoration Plan, (ii) the sum requested is required to pay for costs incurred in connection with such restoration work (giving a description of the services and materials provided in connection with such restoration work), (iii) the sum requested, when added to all amounts with respect to the relevant casualty event previously paid out of the Concentration Account or by the applicable Loan Party out of its Operating Accounts, does not exceed the aggregate amount then due and payable with respect to the restoration work done as of the date of such certificate, (iv) the amount of net proceeds with respect to the Event of Loss remaining in the Concentration Account or the applicable Loan Party's Operating Accounts, together with any other amounts deposited in such accounts by the Borrower or any other Person or otherwise irrevocably committed to be made available to the Borrower as equity funds or Permitted Subordinated Debt (in each case, by the Investors or an Affiliate thereof or a Person that has at least an investment grade long-term unsecured (and not credit enhanced) debt rating or other credit status satisfactory to the Required Lenders) for the purpose of such restoration are anticipated to be sufficient to complete the restoration work in accordance with the Restoration Plan, (v) there exists no mechanic's, materialmen's or other Liens on the affected Property arising out of the Restoration (except which are not yet due, adequately bonded, Permitted Liens or as are being contested pursuant to Permitted Contest Provisions), or if the same do exist, they will be discharged with the funds received from the requested payment, and (vi) no Default or Event of Default has occurred and is continuing.
Appears in 3 contracts
Samples: Loan Agreement (Macquarie Infrastructure CO LLC), Loan Agreement (Macquarie Infrastructure CO LLC), Loan Agreement (Macquarie Infrastructure CO Trust)
Event of Loss. (ia) The Borrower shall promptly notify In the Administrative Agent upon the Borrower having Actual Knowledge event of any an Event of Loss that the Borrower believes will be a Material Loss. The Administrative Agent shall be entitled at its option to consult in any compromise, adjustment or settlement in connection with any Event of Loss under any policy or policies of insurance or any proceeding with respect to any condemnation or other taking of property of the Borrower or otherwise involving a Material Loss, and, with respect to any Material Loss, the Borrower shall within five (5) Business Days after Company or the Administrative Agent's request reimburse affected Restricted Subsidiary of the Administrative Agent for all out-of-pocket expenses (including reasonable attorneys' and experts' fees) incurred by the Administrative Agent in connection with such participation.
(ii) If a Material Loss occurs, unless the appropriate Loan Party elects not to restore such Property and such restoration, repair, replacement or rebuilding is not required under Prudent Industry Practice to operate and maintain such Loan Party's business operations at the applicable airport (in which event the Net Insurance Proceeds or Net Condemnation ProceedsCompany, as the case may be, shall be applied may apply the Net Loss Proceeds from such Event of Loss to a mandatory prepayment the rebuilding, repair, replacement or construction of improvements to the property affected by such Event of Loss (the “Subject Property”), with no concurrent obligation to offer to purchase any of the Loans in accordance with Section 2.8(c)(iv))Securities; provided, however, that the Borrower shall promptly Company delivers to the Trustee within 90 days of such Event of Loss:
(i) a written opinion from a reputable contractor that the Subject Property can be rebuilt, repaired, replaced or constructed in, and in any event operated in, substantially the same condition as it existed prior to the Event of Loss within 30 365 days after the occurrence of the Event of Loss; and
(ii) deliver an Officers’ Certificate certifying that the Company has available from Net Loss Proceeds or other sources sufficient funds to complete the Administrative Agent a Restoration Plan andrebuilding, upon approval thereof by the Administrative Agentrepair, commence and diligently pursue the Restoration. If the plan replacement of restoration as submitted by the Borrower does not qualify as a Restoration Plan or is not approved by the Administrative Agent construction described in accordance with this clause, the Borrower and the Administrative Agent shall enter into negotiations in good faith with a view to agreeing on mutually acceptable terms of the Restoration Planclause (i) above.
(iiib) Funds on deposit in the Any Net Loss Proceeds Account that are not applied or reinvested or not permitted to be made available for restoration work pursuant applied or reinvested as provided in Section 4.15(a) shall be deemed “Excess Loss Proceeds.” When the aggregate amount of Excess Loss Proceeds exceeds $15 million, the Company shall make an offer (an “Event of Loss Offer”) to a Restoration Plan as all Holders and to the holders of any other Permitted Additional Pari Passu Obligations containing provisions similar to those set forth in clause (ii) above will be disbursed to pay the cost of the Restoration upon receipt by the Administrative Agent of a certificate of the Borrower that: (i) all of the restoration work already completed was done substantially in compliance with the approved Restoration Plan, (ii) the sum requested is required to pay for costs incurred in connection with such restoration work (giving a description of the services and materials provided in connection with such restoration work), (iii) the sum requested, when added to all amounts this Indenture with respect to events of loss to purchase or repurchase the relevant casualty event previously paid out of Securities and such other Permitted Additional Pari Passu Obligations with the Concentration Account or by the applicable Loan Party out of its Operating Accounts, does not exceed the aggregate amount then due and payable with respect to the restoration work done as of the date of such certificate, (iv) the amount of net proceeds with respect to from the Event of Loss remaining in the Concentration Account or the applicable Loan Party's Operating Accounts, together with any other amounts deposited in such accounts by the Borrower or any other Person or otherwise irrevocably committed to be made available an amount equal to the Borrower as equity funds or maximum principal amount of Securities and such other Permitted Subordinated Debt (in each case, by the Investors or an Affiliate thereof or a Person Additional Pari Passu Obligations that has at least an investment grade long-term unsecured (and not credit enhanced) debt rating or other credit status satisfactory to the Required Lenders) for the purpose of such restoration are anticipated to may be sufficient to complete the restoration work in accordance with the Restoration Plan, (v) there exists no mechanic's, materialmen's or other Liens on the affected Property arising purchased out of the Restoration (except which are Excess Loss Proceeds. The offer price in any Event of Loss Offer shall be equal to 100% of the principal amount plus accrued and unpaid interest if any, to the date of purchase, and shall be payable in cash. If any Excess Loss Proceeds remain after consummation of an Event of Loss Offer, the Company may use such Excess Loss Proceeds for any purpose not yet due, adequately bonded, otherwise prohibited by this Indenture and the Security Documents and such remaining amount shall not be added to any subsequent Excess Loss Proceeds for any purpose under this Indenture; provided that any remaining Excess Loss Proceeds shall remain subject to the Lien of the Security Documents. If the aggregate principal amount of Securities and other Permitted Liens or as are being contested Additional Pari Passu Obligations tendered pursuant to an Event of Loss Offer exceeds the Excess Loss Proceeds, the Trustee shall select the Securities and such other Permitted Contest ProvisionsAdditional Pari Passu Obligations to be purchased, by lot or by such other method as the Trustee shall deem to be fair and appropriate (and in such manner as complies with applicable legal requirements); provided, that the Trustee shall not select Securities or if such other Permitted Additional Pari Passu Obligations for purchase which would result in a Holder with a principal amount of Securities or such other Permitted Additional Pari Passu Obligations less than the same do exist, they will be discharged applicable minimum denomination to the extent practicable.
(c) The Company shall comply with the funds received from requirements of Rule 14e-1 under the requested payment, Exchange Act and (vi) no Default any other securities laws and regulations to the extent such laws or regulations are applicable in connection with the repurchase of the Securities pursuant to an Event of Default has occurred Loss Offer. To the extent that the provisions of any securities laws or regulations conflict with the Event of Loss provisions of this Indenture, the Company shall comply with the applicable securities laws and is continuingregulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 2 contracts
Samples: Indenture (Remington Arms Co Inc/), Indenture (Freedom Group, Inc.)
Event of Loss. Use in the Ordinary Course of Business; ------------------------------------------------------ Release; Thresholds; Effect of Release; Substitution. ----------------------------------------------------
(ia) The Borrower shall promptly notify Event of Loss. Upon the Administrative Agent upon the Borrower having Actual Knowledge occurrence of any an Event of Loss that with respect to any Operative Collateral, the Borrower believes will be a Material LossCompany shall give the Collateral Agent prompt notice thereof and shall satisfy the applicable Substitution Requirements. The Administrative Upon compliance by the Company with its obligations above and upon Request by the Company, payment by the Company of the Collateral Agent's and Slot Trustee's costs (including reasonable legal fees and disbursements) in connection therewith and satisfaction of any applicable requirements of the TIA, the Collateral Agent shall execute and deliver the required documents releasing, assigning and transferring all of the right, title and interest of the Collateral Agent in and to the Collateral which is the subject of such Event of Loss to the Company or its designee, whereupon such Collateral shall cease to be entitled Collateral for all purposes hereof.
(b) Use in the Ordinary Course of Business. So long as no Event of Default shall exist, the Company shall have the right, at any time and from time to time at its option own cost and expense, without any release from or consent by the Collateral Agent, to consult deal with (but not, except as expressly otherwise permitted under this Pledge Agreement, to sell, lease, transfer or otherwise dispose of, or relinquish possession of) the Operative Collateral in any compromisemanner consistent with the Company's Ordinary Course Of Business, adjustment including without limitation any of the following: With respect to the Pledged Spare Parts:
(A) to dismantle any Pledged Spare Part that has become worn out or settlement obsolete or unfit for use, and either in the Ordinary Course or pursuant to sales permitted under Section 4.04(c), to sell or dispose of other parts thereof not reasonably repairable or usable or any salvage resulting from such dismantling, free from the Lien of this Pledge Agreement;
(B) to apply and use in the Ordinary Course Of Business, free from the Lien of this Pledge Agreement, any Pledged Spare Parts for installation or use in or for use in connection with any Event of Loss under aircraft, aircraft engines, propellers or appliances or spare parts owned or operated by the Company; and
(C) to transfer any policy or policies of insurance or any proceeding with respect to any condemnation or other taking of property all of the Borrower Pledged Spare Parts located at one or otherwise involving a Material Loss, and, with respect more Designated Locations to any Material Loss, the Borrower shall within five (5) Business Days after the Administrative Agent's request reimburse the Administrative Agent for all out-of-pocket expenses (including reasonable attorneys' and experts' fees) incurred by the Administrative Agent in connection with such participation.
(ii) If a Material Loss occurs, unless the appropriate Loan Party elects not to restore such Property and such restoration, repair, replacement one or rebuilding is not required under Prudent Industry Practice to operate and maintain such Loan Party's business operations at the applicable airport (in which event the Net Insurance Proceeds more other Designated Locations or Net Condemnation Proceeds, as the case may be, shall be applied to a mandatory prepayment of the Loans in accordance with Section 2.8(c)(iv)), the Borrower shall promptly (and in any event within 30 days after the occurrence of the Event of Loss) deliver to the Administrative Agent a Restoration Plan and, upon approval thereof by the Administrative Agent, commence and diligently pursue the Restoration. If the plan of restoration as submitted by the Borrower does not qualify as a Restoration Plan one or is not approved by the Administrative Agent in accordance with this clause, the Borrower and the Administrative Agent shall enter into negotiations in good faith with a view to agreeing on mutually acceptable terms of the Restoration Plan.
(iii) Funds on deposit in the Loss Proceeds Account more additional locations that are to be made available for restoration work designated as Designated Locations or either in the Ordinary Course or pursuant to a Restoration Plan as set forth in clause (ii) above will be disbursed to pay the cost of the Restoration upon receipt by the Administrative Agent of a certificate of the Borrower that: (i) all of the restoration work already completed was done substantially in compliance with the approved Restoration Plan, (ii) the sum requested is required to pay for costs incurred in connection with such restoration work (giving a description of the services and materials provided in connection with such restoration worksales permitted under Section 4.04(c), (iii) the sum requested, when added to all amounts with respect to the relevant casualty event previously paid out of the Concentration Account one or by the applicable Loan Party out of its Operating Accounts, does not exceed the aggregate amount then due and payable with respect to the restoration work done as of the date of such certificate, (iv) the amount of net proceeds with respect to the Event of Loss remaining in the Concentration Account or the applicable Loan Party's Operating Accounts, together with any other amounts deposited in such accounts by the Borrower or any other Person or otherwise irrevocably committed to be made available to the Borrower as equity funds or Permitted Subordinated Debt (in each case, by the Investors or an Affiliate thereof or a Person that has at least an investment grade long-term unsecured (and not credit enhanced) debt rating or other credit status satisfactory to the Required Lenders) for the purpose of such restoration are anticipated to be sufficient to complete the restoration work in accordance with the Restoration Plan, (v) there exists no mechanic's, materialmen's or other Liens on the affected Property arising out of the Restoration (except more locations which are not yet due, adequately bonded, Permitted Liens or as are being contested pursuant to Permitted Contest Provisions), or if the same do exist, they will be discharged with the funds received from the requested payment, and (vi) no Default or Event of Default has occurred and is continuingDesignated Locations.
Appears in 2 contracts
Samples: Indenture (Trans World Airlines Inc /New/), Pledge and Security Agreement (Trans World Airlines Inc /New/)
Event of Loss. (i) The Borrower If there shall promptly notify the Administrative Agent upon the Borrower having Actual Knowledge of any occur an Event of Loss that the Borrower believes will be a Material Loss. The Administrative Agent shall be entitled at its option to consult in any compromise, adjustment or settlement in connection with any Event of Loss under any policy or policies of insurance or any proceeding with respect to any condemnation or other taking of property of the Borrower or otherwise involving a Material LossProperty, and, with respect to any Material LossLessee shall give Lessor, the Borrower shall Servicer, and the Indenture Trustee and the Surety prompt written notice thereof and elect, within five sixty (560) Business Days after the Administrative Agent's request reimburse the Administrative Agent for all out-of-pocket expenses (including reasonable attorneys' and experts' fees) incurred by the Administrative Agent in connection with such participation.
(ii) If a Material Loss occurs, unless the appropriate Loan Party elects not to restore such Property and such restoration, repair, replacement or rebuilding is not required under Prudent Industry Practice to operate and maintain such Loan Party's business operations at the applicable airport (in which event the Net Insurance Proceeds or Net Condemnation Proceeds, as the case may be, shall be applied to a mandatory prepayment of the Loans in accordance with Section 2.8(c)(iv)), the Borrower shall promptly (and in any event within 30 days after the occurrence of the Event of Loss, one of the following options provided that Lessee’s election of proceeding under clause (ii) deliver shall be effective only if restoration can be completed by the time specified in such clause (ii): Offer to purchase the Property from Lessor, on a Rent Payment Date, which date shall be a date for which a value is set forth on Schedule 12.1 hereto (the “Stipulated Loss Value Date”), and which Rent Payment Date shall be the first Rent Payment Date at least forty (40) days after Lessor accepts such offer, for a purchase price equal to the Administrative Agent Stipulated Loss Value, determined as of such Stipulated Loss Value Date. In addition to the purchase price, Lessee shall pay (A) all unpaid Base Rent with respect to the Property due and payable on or before such Stipulated Loss Value Date plus any Supplemental Rent payable for the period ending on such Stipulated Loss Value Date (excluding the Stipulated Loss Value and any Make-Whole Premium payable under clause (C), below), plus (B) an amount equal to the reasonable out-of-pocket expenses of Lessor, Indenture Trustee (and the Servicer) and the Holders relating to the purchase, if any, by Lessee as a Restoration Plan result of such Event of Loss, including reasonable attorneys’ fees and costs actually incurred plus (C) the Make-Whole Premium, if any, payable by the Lessor as a consequence of the Lessor’s prepayment of the Secured Notes in connection with such Event of Loss. For the avoidance of doubt, in the event that, despite the express provisions of this Lease to the contrary, a Stipulated Loss Payment is ever made on a date which is not a Rent Payment Date, then Lessee shall pay Base Rent and Supplemental Rent up to and including the date of such Stipulated Loss Payment with Base Rent for the semi-annual period in which the payment is made being prorated based on the number of days since the last Rent Payment Date to and including the date of such payment, over the number of days in the payment period. Lessor, (subject to the consent of the Servicer, acting on behalf of the Indenture Trustee), shall have sixty (60) days from the date of receipt of Lessee’s offer to decide whether to reject such offer. If Lessee has not received a response after forty (40) days, it may send a second notice to the foregoing parties, stating clearly that failure to reject such offer by the later of (i) the original sixty (60) day period, or (ii) ten (10) days after delivery of such second notice will result in Lessor’s being deemed to have accepted such offer, and if Lessee has not received a response by such date, then Lessor shall be deemed to have accepted such offer; or
(i) Restore and rebuild the Improvements damaged as a result of such Event of Loss so that such Improvements will have a value, utility and remaining useful life as nearly as reasonably practicable equal to the value, utility and remaining useful life of the Improvements immediately prior to such Event of Loss, and in all events as required by Section 8.2, such restoration to be substantially completed, subject to force majeure, by the earlier to occur of (x) the thirtieth (30th) month anniversary of the Event of Loss, or (y) six months prior to the expiration of the Lease Term (and Lessee shall remain liable for the completion of such restoration beyond the expiration of the Lease Term to the extent not completed prior to such expiration and shall pay Base Rent and Supplemental Rent with respect to the Property from the date of expiration to the date of completion). If Lessee makes an offer to purchase pursuant to clause (i) above of this Section 12.1, and Lessor accepts such offer or is deemed to accept such offer (taking into account the last sentence of clause (i) above) within the sixty (60) day period referred to in the last sentence of clause (i) above, the conveyance shall occur, and Lessee shall pay to Lessor the Stipulated Loss Value, the Rent, the expenses and Make-Whole Premium described in said clause (i) on the Stipulated Loss Value Date; provided that any Net Proceeds related to the Property then held by Lessor or the Servicer on behalf of the Indenture Trustee shall be credited against the portion of such purchase price payable to Lessor and the balance of Net Proceeds, if any, shall be paid to or retained by Lessee. In the event Lessee has made the election described in (ii) above and, upon approval notwithstanding diligent efforts in good faith, has failed to comply with the terms thereof within the periods described, then Lessee shall be deemed to have made the offer described in (i) above to purchase the Property and the Stipulated Loss Value Date shall be deemed to be the next succeeding date set forth on the Stipulated Loss Value Schedule occurring thirty (30) days after the expiration of the period described in (ii), or if there is no such date, the last date on Schedule 12.1, as the case may be, but in any event, only on a Rent Payment Date; provided, however, in the event Lessee has elected option (ii) above, and has not completed restoration as required therein within the time frame set forth in subclause (x) thereof, no Lease Default or Lease Event of Default is then existing, and the Guarantor has a Required Rating at least equal to the Trigger Rating, Lessee may elect, within ten (10) days prior to expiration of such period, in lieu of being deemed to make the offer described in clause (i) above, to continue to elect option (ii) above. Such election shall require Lessee to pay to Lessor, within thirty (30) days after demand therefor, an amount as required under Section 19.2(a). Nothing herein shall be deemed to affect Lessee’s obligation to elect option (i) above to purchase the Property if Lessee has not completed restoration by six (6) months prior to the expiration of the Lease Term. In the event Lessor rejects the offer of Lessee to purchase the Property as provided in clause (i) of this Section 12.1 (which it may not do without the Servicer’s written consent unless it first pays to the Servicer, acting on behalf of the Indenture Trustee, an amount sufficient to pay all amounts due in respect of the Secured Note[s] secured by the Administrative AgentProperty including, commence without limitation, the Make-Whole Premium, and diligently pursue all other amounts due and payable under any of the RestorationOperative Documents relating to the Property), the following amount shall be paid to or retained by Lessor on such Stipulated Loss Value Date: (A) all Net Proceeds related to the Property, provided that, if Lessee is self-insured (as permitted above) by means of deductibles, retained risks or no insurance whatsoever, Lessee shall pay such amounts or additional amounts so that Lessor receives in total (including any Net Proceeds) an amount that would have been paid by a third-party insurer under a customary commercial all-risk full replacement-value insurance policy substantially similar to that described in Schedule 9.01 without deductibles or retained risks (but in any case amounts paid to Lessor will not be in excess of the replacement value of the Improvements immediately preceding the Event of Loss, which replacement value shall be as mutually agreed between Lessee and Lessor and, failing such agreement within fifteen (15) days of the request of either party to do so, by the Appraisal Procedure), plus (B)unpaid Base Rent due and unpaid on or prior to such Stipulated Loss Value Date and Supplemental Rent due with respect to the Property for the period ending on such Stipulated Loss Value Date (excluding any Make-Whole Premium payable under clause (C), below), plus (C) the Make-Whole Premium, if any, payable by the Lessor as a consequence of the Lessor’s prepayment of the Secured Notes in connection with such Event of Loss (even if Lessee’s offer to purchase is rejected). For the avoidance of doubt, in the event that, despite the express provisions of the Lease to the contrary, the foregoing payments are ever made on a date which is not a Rent Payment Date, then Lessee shall pay Base Rent and Supplemental Rent up to and including the date of such payment with Base Rent for the semi-annual period in which the payment is made being prorated based on the number of days since the last Rent Payment Date to and including the date of such payment over the number of days in the payment period. If Lessor elects to reject the plan offer of restoration as submitted Lessee hereunder to purchase the Property pursuant to this Section 12.1 while the Secured Notes are outstanding, any notice of rejection shall only be effective, and Lessor shall only be entitled to reject such offer, if such notice is in writing and either such rejection is concurrently consented to in writing by the Borrower does not qualify as a Restoration Plan Servicer on behalf of the Indenture Trustee or is not approved Lessor pays to the Servicer (acting on behalf of the Indenture Trustee) all amounts then due and payable under the Secured Notes and all other amounts due and payable under any Operative Documents, and absent such repayment or consent by the Administrative Agent Servicer within the period referred to in accordance with this clausethe last sentence of clause (i) above, the Borrower and the Administrative Agent Lessor shall enter into negotiations be deemed to have accepted Lessee’s offer. Upon payment in good faith with a view to agreeing on mutually acceptable terms full of the Restoration Plan.
amounts set forth in clauses (iiiA), (B) Funds on deposit and (C) of the second preceding paragraph (in the Loss Proceeds Account that are to be made available for restoration work pursuant to a Restoration Plan as event Lessor rejected Lessee’s offer) or upon payment in full of the amounts set forth in clause (iii) above will be disbursed to pay the cost of the Restoration upon receipt by first sentence of this Section 12.1 and the Administrative Agent of a certificate conveyance of the Borrower that: Property to Lessee as provided herein (iin the event Lessor accepted (or is deemed to have accepted) all of the restoration work already completed was done substantially in compliance with the approved Restoration Plan, (ii) the sum requested is required Lessee’s offer to pay for costs incurred in connection with such restoration work (giving a description of the services and materials provided in connection with such restoration workpurchase), (iii1) the sum requestedLease Term shall end, when added to all amounts and (2) the obligations of Lessee hereunder (other than any obligations expressed herein as surviving termination of this Lease) with respect to the relevant casualty event previously paid out of the Concentration Account or by the applicable Loan Party out of its Operating Accounts, does not exceed the aggregate amount then due and payable with respect to the restoration work done such Property shall terminate as of the date of such certificate, (iv) the amount of net proceeds with respect payment. Lessee shall continue to the Event of Loss remaining in the Concentration Account or the applicable Loan Party's Operating Accounts, together with any other amounts deposited in such accounts by the Borrower or any other Person or otherwise irrevocably committed to be made available to the Borrower make all Rent Payments as equity funds or Permitted Subordinated Debt (in each case, by the Investors or an Affiliate thereof or a Person that has at least an investment grade long-term unsecured (and not credit enhanced) debt rating or other credit status satisfactory to the Required Lenders) for the purpose of such restoration are anticipated to be sufficient to complete the restoration work in accordance with the Restoration Plan, (v) there exists no mechanic's, materialmen's or other Liens on the affected Property arising out when due hereunder until termination of the Restoration (except which are not yet due, adequately bonded, Permitted Liens or Lease as are being contested pursuant to Permitted Contest Provisions), or if the same do exist, they will be discharged with the funds received from the requested payment, and (vi) no Default or Event of Default has occurred and is continuingprovided herein.
Appears in 2 contracts
Samples: Lease Agreement (Vistra Energy Corp), Lease Agreement (Vistra Energy Corp)
Event of Loss. (i) The Borrower shall promptly notify the Administrative Agent upon the Borrower having Actual Knowledge of any Event of Loss that the Borrower believes will be a Material Loss. The Administrative Agent shall be entitled at its option to consult in any compromise, adjustment or settlement in connection with any Event of Loss under any policy or policies of insurance or any proceeding with respect to any condemnation or other taking of property of the Borrower or otherwise involving a Material Loss, and, with respect to any Material Loss, the Borrower shall within five (5) Business Days after the Administrative Agent's request reimburse the Administrative Agent for all out-of-pocket expenses (including reasonable attorneys' and experts' fees) incurred by the Administrative Agent in connection with such participation.
(ii) If a Material Loss occurs, unless the appropriate Loan Party elects not to restore such Property and such restoration, repair, replacement or rebuilding is not required under Prudent Industry Practice to operate and maintain such Loan Party's business operations at the applicable airport (in which event the Net Insurance Proceeds or Net Condemnation Proceeds, as the case may be, shall be applied to a mandatory prepayment of the Loans in accordance with Section 2.8(c)(iv)), the Borrower shall promptly (and in any event within 30 days after the occurrence of the Event of Loss) deliver to the Administrative Agent a Restoration Plan and, upon approval thereof by the Administrative Agent, commence and diligently pursue the Restoration. If the plan of restoration as submitted by the Borrower does not qualify as a Restoration Plan or is not approved by the Administrative Agent in accordance with this clause, the Borrower and the Administrative Agent shall enter into negotiations in good faith with a view to agreeing on mutually acceptable terms of the Restoration Plan.
(iii) Funds on deposit in the Loss Proceeds Account that are to be made available for restoration work pursuant to a Restoration Plan as set forth in clause (ii) above will be disbursed to pay the cost of the Restoration upon receipt by the Administrative Agent of a certificate of the Borrower certifying that: (iA) all of the restoration work already completed was done substantially in compliance with the approved Restoration Plan, (iiB) the sum requested is required to pay for costs incurred in connection with such restoration work (giving a description of the services and materials provided in connection with such restoration work), (iiiC) the sum requested, when added to all amounts with respect to the relevant casualty event previously paid out of the Concentration Account or by the applicable Loan Party out of its Operating Accounts, does not exceed the aggregate amount then due and payable with respect to the restoration work done as of the date of such certificate, (ivD) the amount of net proceeds with respect to the Event of Loss remaining in the Concentration Account or the applicable Loan Party's Operating Accounts, together with any other amounts deposited in such accounts by the Borrower or any other Person or otherwise irrevocably committed to be made available to the Borrower as equity funds or Permitted Subordinated Debt (in each case, by the Investors Investor or an Affiliate thereof or a Person that has at least an investment grade long-term unsecured (and not credit enhanced) debt rating or other credit status satisfactory to the Required Lenders) for the purpose of such restoration are anticipated to be sufficient to complete the restoration work in accordance with the Restoration Plan, (v) there exists no mechanic's, materialmen's or other Liens on the affected Property arising out of the Restoration (except which are not yet due, adequately bonded, Permitted Liens or as are being contested pursuant to Permitted Contest Provisions), or if the same do exist, they will be discharged with the funds received from the requested payment, and (vi) no Default or Event of Default has occurred and is continuing.
Appears in 2 contracts
Samples: Loan Agreement (Macquarie Infrastructure CO LLC), Loan Agreement (Macquarie Infrastructure CO Trust)
Event of Loss. (i) The Borrower shall promptly notify Upon the Administrative Agent upon the Borrower having Actual Knowledge occurrence of any Event of Loss that the Borrower believes will be a Material Loss. The Administrative Agent shall be entitled at its option to consult in any compromise, adjustment or settlement in connection with any Event of Loss under any policy or policies of insurance or any proceeding with respect to any condemnation Note Collateral with a fair market value (or other taking replacement cost, if greater) in excess of property of the Borrower or otherwise involving a Material Loss, and, with respect to any Material Loss$1.5 million, the Borrower shall within five (5) Business Days after Issuers or the Administrative Agent's request reimburse the Administrative Agent for all out-of-pocket expenses (including reasonable attorneys' and experts' fees) incurred by the Administrative Agent in connection with such participation.
(ii) If a Material Loss occurs, unless the appropriate Loan Party elects not to restore such Property and such restoration, repair, replacement or rebuilding is not required under Prudent Industry Practice to operate and maintain such Loan Party's business operations at the applicable airport (in which event the Net Insurance Proceeds or Net Condemnation Proceedsaffected Restricted Subsidiary, as the case may be, may apply the Net Loss Proceeds from such Event of Loss to (X) the rebuilding, repair, replacement or construction of improvements to the Project, with no concurrent obligation to make any purchase of any Mortgage Notes; provided that (A) if such Event of Loss occurs prior to Completion, the Issuers ability to apply such Net Loss Proceeds to rebuild, repair, replace or construct improvements to the Project shall be applied subject to a mandatory prepayment the terms of the Loans in accordance with Section 2.8(c)(iv))Disbursement Agreement and (B) if such Event of Loss occurs on or after Completion, the Borrower Issuers deliver to the Mortgage Note Trustee within 90 days of such Event of Loss (i) a written opinion from a reputable architect that the Project can be rebuilt, repaired, replaced, or constructed and Completed within one year of delivery of such opinion (or if later, the Outside Completion Date) substantially in the condition prior to such Event of Loss and (ii) an Officers' Certificate certifying that the Issuers have available from Net Loss Proceeds, cash on hand or available borrowings under Indebtedness permitted to be incurred pursuant to Section 4.09 hereof to complete such rebuilding, repair, replacement or construction, (Y) permanently reduce Indebtedness or commitments under the Bank Credit Facility or other Indebtedness that is not Subordinated Indebtedness or (Z) for working capital purposes in an aggregate amount not to exceed $20.0 million, in each case, with no concurrent obligation to make an offer to purchase Mortgage Notes. Pending the final application of any such Net Loss Proceeds, the Issuers or the applicable Restricted Subsidiary, as the case may be, may temporarily reduce Indebtedness under the Bank Credit Facility or another revolving credit facility, if any, or otherwise invest such Net Loss Proceeds in Cash Equivalents which shall promptly be pledged to the Mortgage Note Trustee or an agent thereof (and in any event within 30 days after including the occurrence agent under the Bank Credit Facility) as security for the Holders of Mortgage Notes with the same relative priority with respect to the other secured creditors as the priority of the Liens securing the asset that is the subject of the Event of Loss, except (i) deliver such Cash Equivalents shall be pledged to the Administrative Disbursement Agent a Restoration Plan andas security for the lenders prior to Completion and (ii) after Completion, upon approval such Cash Equivalents need not be pledged to the Mortgage Note Trustee or an agent thereof by (including the Administrative Agentagent under the Bank Credit Facility) to the extent that the assets subject to such Event of Loss were not subject to Liens securing the Note Collateral prior to such Event of Loss. Any Net Loss Proceeds from an Event of Loss that are not reinvested or used to repay Indebtedness or as working capital as provide in the first sentence of this paragraph will be deemed to constitute "Excess Loss Proceeds." When the aggregate amount of Excess Loss Proceeds exceeds $10.0 million, commence the Issuers shall, subject to any repayment obligations owed to the lenders under the Bank Credit Facility and diligently pursue Mall Construction Lender, make an offer to all holders of Mortgage Notes (an "Event of Loss Offer") to purchase the Restorationmaximum principal amount of Mortgage Notes, that is an integral multiple of $1,000, that may be purchased out of the Excess Loss Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in Section 3.10 hereof. To the extent that the aggregate amount of Mortgage Notes tendered pursuant to an Event of Loss Offer is less than the applicable Excess Loss Proceeds, the Issuers may use any remaining Excess Loss Proceeds for general corporate purposes or to offer to redeem Senior Subordinated Notes pursuant to Section 3.10 of the Senior Subordinated Note Indenture. If the plan aggregate principal amount of restoration as submitted Mortgage Notes surrendered by Holders thereof exceeds the Borrower does not qualify as a Restoration Plan or is not approved by amount of Excess Loss Proceeds, the Administrative Agent Mortgage Note Trustee shall select the Mortgage Notes to be purchased in accordance with this clauseSections 3.02 and 3.03 hereof. Upon completion of any such Event of Loss Offer, the Borrower and the Administrative Agent shall enter into negotiations in good faith with a view to agreeing on mutually acceptable terms amount of the Restoration Plan.
(iii) Funds on deposit in the Excess Loss Proceeds Account that are shall be reset at zero. The Issuers or such Restricted Subsidiary shall grant (i) to be made available for restoration work pursuant to the lenders under the Bank Credit Facility a Restoration Plan as set forth in clause first priority lien and (ii) above will be disbursed to pay the cost Mortgage Note Trustee, on behalf of the Restoration upon receipt by the Administrative Agent of a certificate holders of the Borrower that: (i) all of the restoration work already completed was done substantially Mortgage Notes, a second priority Lien, in compliance with the approved Restoration Planeach case, (ii) the sum requested is required to pay for costs incurred in connection on any properties or assets rebuilt, repaired or constructed with such restoration work (giving a description of Net Loss Proceeds to, the services and materials provided in connection with such restoration work), (iii) extent that the sum requested, when added to all amounts with respect to the relevant casualty event previously paid out of the Concentration Account or by the applicable Loan Party out of its Operating Accounts, does not exceed the aggregate amount then due and payable with respect to the restoration work done as of the date of such certificate, (iv) the amount of net proceeds with respect assets subject to the Event of Loss remaining in were subject to Liens securing the Concentration Account Note Collateral prior to such Event of Loss. If the Event of Loss occurred prior to Completion, then to the extent that any assets subject to an Event of Loss were subject to liens securing the Mall Collateral prior to such Event of Loss, this Indenture will also require the Issuers or the applicable Loan Party's Operating Accounts, together with any other amounts deposited in such accounts by the Borrower or any other Person or otherwise irrevocably committed Restricted Subsidiary to be made available grant (i) to the Borrower as equity funds or Permitted Subordinated Debt Mall Construction Lender a first priority lien, (ii) to the lenders under the Bank Credit Facility a second priority lien and (iii) to the Mortgage Note Trustee, on behalf of the Holders of the Mortgage Notes, a third priority Lien, in each casecase on any property or assets rebuilt, by the Investors repaired or an Affiliate thereof or a Person that has at least an investment grade long-term unsecured (and not credit enhanced) debt rating or other credit status satisfactory to the Required Lenders) for the purpose of such restoration are anticipated to be sufficient to complete the restoration work in accordance constructed with the Restoration Plan, (v) there exists no mechanic's, materialmen's or other Liens on the affected Property arising out Net Loss Proceeds of the Restoration (except which are not yet due, adequately bonded, Permitted Liens or as are being contested pursuant to Permitted Contest Provisions), or if the same do exist, they will be discharged with the funds received from the requested payment, and (vi) no Default or any such Event of Default has occurred and is continuingLoss.
Appears in 1 contract
Samples: Indenture (Grand Canal Shops Mall Construction LLC)
Event of Loss. (i) The Borrower shall promptly notify In the Administrative Agent upon the Borrower having Actual Knowledge event of any an Event of Loss that the Borrower believes will be a Material Loss. The Administrative Agent shall be entitled at its option to consult in any compromise, adjustment or settlement in connection with any Event of Loss under any policy or policies of insurance or any proceeding with respect to any condemnation or other taking of property of the Borrower or otherwise involving a Material Loss, and, with respect to any Material Loss, Parent or the Borrower shall within five (5) Business Days after the Administrative Agent's request reimburse the Administrative Agent for all out-of-pocket expenses (including reasonable attorneys' and experts' fees) incurred by the Administrative Agent in connection with such participation.
(ii) If a Material Loss occurs, unless the appropriate Loan Party elects not to restore such Property and such restoration, repair, replacement or rebuilding is not required under Prudent Industry Practice to operate and maintain such Loan Party's business operations at the applicable airport (in which event the Net Insurance Proceeds or Net Condemnation Proceedsaffected Restricted Subsidiary of Parent, as the case may be, shall be applied may (and to the extent required pursuant to the terms of any lease encumbered by a mandatory prepayment mortgage shall) apply the Net Loss Proceeds from such Event of Loss to the rebuilding, repair, replacement or construction of improvements to the property affected by such Event of Loss (the “Subject Property”), with no concurrent obligation to offer to purchase any of the Loans in accordance with Section 2.8(c)(iv))notes; provided, however, that Parent delivers to the Borrower shall promptly (and in any event Trustee within 30 90 days after the occurrence of the such Event of LossLoss an Officers’ Certificate certifying that Parent has applied (or will apply after receipt of any anticipated insurance or similar proceeds) deliver to the Administrative Agent a Restoration Plan and, upon approval thereof by the Administrative Agent, commence and diligently pursue the Restoration. If the plan of restoration as submitted by the Borrower does not qualify as a Restoration Plan Net Loss Proceeds or is not approved by the Administrative Agent other sources in accordance with this clausesentence. Any Net Loss Proceeds that are not reinvested or not permitted to be reinvested as provided in the first sentence of this covenant will be deemed “Excess Loss Proceeds.” When the aggregate amount of Excess Loss Proceeds exceeds $15.0 million, the Borrower Issuer will make an offer (an “Event of Loss Offer”) to all holders and to the Administrative Agent shall enter into negotiations in good faith with a view holders of any other Permitted Additional Pari Passu Obligations containing provisions similar to agreeing on mutually acceptable terms of the Restoration Plan.
(iii) Funds on deposit in the Loss Proceeds Account that are to be made available for restoration work pursuant to a Restoration Plan as those set forth in clause (ii) above will be disbursed to pay the cost of the Restoration upon receipt by the Administrative Agent of a certificate of the Borrower that: (i) all of the restoration work already completed was done substantially in compliance with the approved Restoration Plan, (ii) the sum requested is required to pay for costs incurred in connection with such restoration work (giving a description of the services and materials provided in connection with such restoration work), (iii) the sum requested, when added to all amounts this Indenture with respect to events of loss to purchase or repurchase the relevant casualty event previously paid out of notes and such other Permitted Additional Pari Passu Obligations with the Concentration Account or by the applicable Loan Party out of its Operating Accounts, does not exceed the aggregate amount then due and payable with respect to the restoration work done as of the date of such certificate, (iv) the amount of net proceeds with respect to from the Event of Loss remaining in the Concentration Account or the applicable Loan Party's Operating Accounts, together with any other amounts deposited in such accounts by the Borrower or any other Person or otherwise irrevocably committed to be made available an amount equal to the Borrower as equity funds or maximum principal amount of notes and such other Permitted Subordinated Debt (in each case, by the Investors or an Affiliate thereof or a Person Additional Pari Passu Obligations that has at least an investment grade long-term unsecured (and not credit enhanced) debt rating or other credit status satisfactory to the Required Lenders) for the purpose of such restoration are anticipated to may be sufficient to complete the restoration work in accordance with the Restoration Plan, (v) there exists no mechanic's, materialmen's or other Liens on the affected Property arising purchased out of the Restoration (except which are Excess Loss Proceeds. The offer price in any Event of Loss Offer will be equal to 100% of the principal amount plus accrued and unpaid interest if any, to the date of purchase, and will be payable in cash. If any Excess Loss Proceeds remain after consummation of an Event of Loss Offer, Parent may use such Excess Loss Proceeds for any purpose not yet due, adequately bonded, otherwise prohibited by this Indenture and the Security Documents and such remaining amount shall not be added to any subsequent Excess Loss Proceeds for any purpose under this Indenture. If the aggregate principal amount of notes and other Permitted Liens or as are being contested Additional Pari Passu Obligations tendered pursuant to an Event of Loss Offer exceeds the Excess Loss Proceeds, the trustee will select the notes and Parent or its agent shall select such other Permitted Contest Provisions), or if Additional Pari Passu Obligations to be purchased on a pro rata basis based on the same do exist, they principal amount tendered. The Issuer will be discharged comply with the funds received from requirements of Rule 14e-1 under the requested paymentExchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of notes pursuant to a Change of Control Offer, and (vi) no Default Asset Sale Offer or Event of Default has occurred Loss Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control, Asset Sales or Event of Loss provisions of this Indenture, the Issuer will comply with the applicable securities laws and is continuingregulations and will not be deemed to have breached their obligations under the Change of Control, Asset Sales or Event of Loss provisions of the indenture by virtue of such compliance.
Appears in 1 contract
Event of Loss. (i) The Borrower shall promptly notify Upon the Administrative Agent upon the Borrower having Actual Knowledge occurrence of any an Event of Loss or Events of Loss prior to Closing, Seller shall use commercially reasonable efforts to repair, replace and restore the damaged, destroyed or lost property (the “Damaged Asset”) to its former condition prior to the First Closing. If Seller is unable to repair, replace or restore the Damaged Assets for which the cost to repair is less than $500,000 (the “Threshold Cost”) prior to the First Closing Date, then, provided that the Borrower believes will be a Material Loss. The Administrative Agent shall be entitled Stations are operating at its option to consult full authorized power and are in any compromise, adjustment or settlement in connection normal working order consistent with any Event of Loss under any policy or policies of insurance or any proceeding with respect to any condemnation or other taking of property the operation as of the Borrower or otherwise involving a Material Loss, and, with respect to any Material Lossdate hereof, the Borrower parties will proceed to Closing and Seller shall within five (5) Business Days after the Administrative Agent's request either, at Buyer’s option, reimburse the Administrative Agent Buyer for all reasonable out-of-pocket expenses (including reasonable attorneys' and experts' fees) costs incurred by Buyer in repairing or replacing the Administrative Agent Damaged Assets or shall assign to Buyer all of Seller’s rights under any insurance and all proceeds of insurance covering the Damaged Assets (excluding business interruption insurance for periods prior to the First Closing Date) and shall deliver to Buyer all proceeds of insurance theretofore received by Seller. In the event that the insurance proceeds are insufficient to complete the repairs, restoration or replacement, an appropriate reduction in connection with such participation.
(ii) If a Material Loss occurs, unless the appropriate Loan Party elects not to restore such Property and such restoration, repair, replacement or rebuilding is not required under Prudent Industry Practice to operate and maintain such Loan Party's business operations Purchase Price shall be made at the applicable airport (in First Closing. If Seller is unable to repair or replace prior to the First Closing Date a Damaged Asset for which event the Net Insurance Proceeds cost to repair is more than the Threshold Cost or Net Condemnation Proceeds, if as the case may be, shall be applied to a mandatory prepayment result of the Loans in accordance with Section 2.8(c)(iv))Damaged Asset, the Borrower shall promptly (Stations are not operating at full authorized power and in any event within 30 days after the occurrence of the Event of Loss) deliver to the Administrative Agent a Restoration Plan and, upon approval thereof by the Administrative Agent, commence and diligently pursue the Restoration. If the plan of restoration as submitted by the Borrower does not qualify as a Restoration Plan or is not approved by the Administrative Agent in accordance normal working order consistent with this clause, the Borrower and the Administrative Agent shall enter into negotiations in good faith with a view to agreeing on mutually acceptable terms of the Restoration Plan.
(iii) Funds on deposit in the Loss Proceeds Account that are to be made available for restoration work pursuant to a Restoration Plan as set forth in clause (ii) above will be disbursed to pay the cost of the Restoration upon receipt by the Administrative Agent of a certificate of the Borrower that: (i) all of the restoration work already completed was done substantially in compliance with the approved Restoration Plan, (ii) the sum requested is required to pay for costs incurred in connection with such restoration work (giving a description of the services and materials provided in connection with such restoration work), (iii) the sum requested, when added to all amounts with respect to the relevant casualty event previously paid out of the Concentration Account or by the applicable Loan Party out of its Operating Accounts, does not exceed the aggregate amount then due and payable with respect to the restoration work done operation as of the date hereof, then Seller or Buyer may delay the First Closing for up to sixty (60) days in order to allow Seller to complete such repairs. If Seller has not completed such repairs by the First Closing, or if so elected, by Buyer or Seller by the end of such certificatethe 60-day period, then, at Buyer’s option, (iva) Buyer may terminate this Agreement, or (b) the amount parties will proceed to Closing and Seller shall either, at Buyer’s option, reimburse Buyer for all reasonable out-of-pocket costs incurred by Buyer in repairing or replacing the Damaged Assets, or assign to Buyer all proceeds of net insurance covering the property involved and shall deliver to Buyer all proceeds with respect of insurance theretofore received by Seller. In the event that the insurance proceeds are insufficient to complete the repairs, restoration or replacement, an appropriate reduction in the Purchase Price shall be made at the First Closing. The Schedules shall be deemed modified to reflect any Damaged Asset for which Seller makes or is obligated to make a payment or which is replaced by Seller pursuant to this Section 11.1. Notwithstanding anything in this Section 11.1 to the contrary, if an Event of Loss remaining in is caused by or results from Buyer’s actions or omissions under the Concentration Account or the applicable Loan Party's Operating AccountsLMA, together with Seller shall have no obligation to make any other amounts deposited in such accounts by the Borrower or any other Person or otherwise irrevocably committed to be made available repairs to the Borrower as equity funds or Permitted Subordinated Debt (in each case, by the Investors or an Affiliate thereof or a Person that has at least an investment grade long-term unsecured (Damaged Assets and not credit enhanced) debt rating or other credit status satisfactory Buyer shall have no right to the Required Lenders) for the purpose terminate this Agreement on account of such restoration are anticipated to be sufficient to complete the restoration work in accordance with the Restoration Plan, (v) there exists no mechanic's, materialmen's or other Liens on the affected Property arising out of the Restoration (except which are not yet due, adequately bonded, Permitted Liens or as are being contested pursuant to Permitted Contest Provisions), or if the same do exist, they will be discharged with the funds received from the requested payment, and (vi) no Default or Event of Default has occurred and is continuingLoss.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Emmis Communications Corp)
Event of Loss. (ia) The Borrower shall promptly notify the Administrative Agent upon the Borrower having Actual Knowledge of any Event of Loss that the Borrower believes will be a Material Loss. The Administrative Agent shall be entitled at its option to consult in any compromise, adjustment or settlement in connection with any Event of Loss under any policy or policies of insurance or any proceeding with respect to any condemnation or other taking of property of the Borrower or otherwise involving a Material Loss, and, with respect to any Material Loss, the Borrower shall within five (5) Business Days after the Administrative Agent's ’s request reimburse the Administrative Agent for all out-of-pocket expenses (including reasonable attorneys' ’ and experts' ’ fees) incurred by the Administrative Agent in connection with such participation.
(iib) If a Material Loss occurs, unless the appropriate Loan Party elects not to restore Restore such Property and such restoration, repair, replacement or rebuilding Restoration is not required under Prudent Industry Practice to operate and maintain such Loan Party's ’s business operations at the applicable airport (in which event the Net Insurance Proceeds or Net Condemnation Proceeds, as the case may be, shall be applied to a mandatory prepayment of the Loans in accordance with Section 2.8(c)(iv2.9(c)(iii)), the Borrower shall promptly (and in any event within 30 days after the occurrence of the Event of Loss) deliver to the Administrative Agent a Restoration Plan and, upon approval thereof by the Administrative Agent, commence and diligently pursue the Restoration. If the plan of restoration as submitted by the Borrower does not qualify as a Restoration Plan or is not approved by the Administrative Agent in accordance with this clauseparagraph (b), the Borrower and the Administrative Agent shall enter into negotiations in good faith with a view to agreeing on mutually acceptable terms of the Restoration Plan.
(iii) Funds on deposit in the Loss Proceeds Account that are to be made available for restoration work pursuant to a Restoration Plan as set forth in clause (ii) above will be disbursed to pay the cost of the Restoration upon receipt by the Administrative Agent of a certificate of the Borrower that: (i) all of the restoration work already completed was done substantially in compliance with the approved Restoration Plan, (ii) the sum requested is required to pay for costs incurred in connection with such restoration work (giving a description of the services and materials provided in connection with such restoration work), (iii) the sum requested, when added to all amounts with respect to the relevant casualty event previously paid out of the Concentration Account or by the applicable Loan Party out of its Operating Accounts, does not exceed the aggregate amount then due and payable with respect to the restoration work done as of the date of such certificate, (iv) the amount of net proceeds with respect to the Event of Loss remaining in the Concentration Account or the applicable Loan Party's Operating Accounts, together with any other amounts deposited in such accounts by the Borrower or any other Person or otherwise irrevocably committed to be made available to the Borrower as equity funds or Permitted Subordinated Debt (in each case, by the Investors or an Affiliate thereof or a Person that has at least an investment grade long-term unsecured (and not credit enhanced) debt rating or other credit status satisfactory to the Required Lenders) for the purpose of such restoration are anticipated to be sufficient to complete the restoration work in accordance with the Restoration Plan, (v) there exists no mechanic's, materialmen's or other Liens on the affected Property arising out of the Restoration (except which are not yet due, adequately bonded, Permitted Liens or as are being contested pursuant to Permitted Contest Provisions), or if the same do exist, they will be discharged with the funds received from the requested payment, and (vi) no Default or Event of Default has occurred and is continuing.
Appears in 1 contract
Event of Loss. (i) The Borrower If there shall promptly notify the Administrative Agent upon the Borrower having Actual Knowledge of any occur an Event of Loss that the Borrower believes will be a Material Loss. The Administrative Agent shall be entitled at its option to consult in any compromise, adjustment or settlement in connection with any Event of Loss under any policy or policies of insurance or any proceeding with respect to any condemnation or other taking of property of the Borrower or otherwise involving a Material LossProperty, and, with respect to any Material LossLessee shall give Lessor, the Borrower shall Servicer, and the Indenture Trustee and the Surety prompt written notice thereof and elect, within five sixty (560) Business Days after the Administrative Agent's request reimburse the Administrative Agent for all out-of-pocket expenses (including reasonable attorneys' and experts' fees) incurred by the Administrative Agent in connection with such participation.
(ii) If a Material Loss occurs, unless the appropriate Loan Party elects not to restore such Property and such restoration, repair, replacement or rebuilding is not required under Prudent Industry Practice to operate and maintain such Loan Party's business operations at the applicable airport (in which event the Net Insurance Proceeds or Net Condemnation Proceeds, as the case may be, shall be applied to a mandatory prepayment of the Loans in accordance with Section 2.8(c)(iv)), the Borrower shall promptly (and in any event within 30 days after the occurrence of the Event of Loss, one of the following options provided that Lessee's election of proceeding under clause (ii) deliver shall be effective only if restoration can be completed by the time specified in such clause (ii): Offer to purchase the Property from Lessor, on a Rent Payment Date, which date shall be a date for which a value is set forth on Schedule 12.1 hereto (the "Stipulated Loss Value Date"), and which Rent Payment Date shall be the first Rent Payment Date at least forty (40) days after Lessor accepts such offer, for a purchase price equal to the Administrative Agent Stipulated Loss Value, determined as of such Stipulated Loss Value Date. In addition to the purchase price, Lessee shall pay (A) all unpaid Base Rent with respect to the Property due and payable on or before such Stipulated Loss Value Date plus any Supplemental Rent payable for the period ending on such Stipulated Loss Value Date (excluding the Stipulated Loss Value and any Make-Whole Premium payable under clause (C), below), plus (B) an amount equal to the reasonable out-of-pocket expenses of Lessor, Indenture Trustee (and the Servicer) and the Holders relating to the purchase, if any, by Lessee as a Restoration Plan result of such Event of Loss, including reasonable attorneys' fees and costs actually incurred plus (C) the Make-Whole Premium, if any, payable by the Lessor as a consequence of the Lessor's prepayment of the Secured Notes in connection with such Event of Loss. For the avoidance of doubt, in the event that, despite the express provisions of this Lease to the contrary, a Stipulated Loss Payment is ever made on a date which is not a Rent Payment Date, then Lessee shall pay Base Rent and Supplemental Rent up to and including the date of such Stipulated Loss Payment with Base Rent for the semi-annual period in which the payment is made being prorated based on the number of days since the last Rent Payment Date to and including the date of such payment, over the number of days in the payment period. Lessor, (subject to the consent of the Servicer, acting on behalf of the Indenture Trustee), shall have sixty (60) days from the date of receipt of Lessee's offer to decide whether to reject such offer. If Lessee has not received a response after forty (40) days, it may send a second notice to the foregoing parties, stating clearly that failure to reject such offer by the later of (i) the original sixty (60) day period, or (ii) ten (10) days after delivery of such second notice will result in Lessor's being deemed to have accepted such offer, and if Lessee has not received a response by such date, then Lessor shall be deemed to have accepted such offer; or
(i) Restore and rebuild the Improvements damaged as a result of such Event of Loss so that such Improvements will have a value, utility and remaining useful life as nearly as reasonably practicable equal to the value, utility and remaining useful life of the Improvements immediately prior to such Event of Loss, and in all events as required by Section 8.2, such restoration to be substantially completed, subject to force majeure, by the earlier to occur of (x) the thirtieth (30th) month anniversary of the Event of Loss, or (y) six months prior to the expiration of the Lease Term (and Lessee shall remain liable for the completion of such restoration beyond the expiration of the Lease Term to the extent not completed prior to such expiration and shall pay Base Rent and Supplemental Rent with respect to the Property from the date of expiration to the date of completion). If Lessee makes an offer to purchase pursuant to clause (i) above of this Section 12.1, and Lessor accepts such offer or is deemed to accept such offer (taking into account the last sentence of clause (i) above) within the sixty (60) day period referred to in the last sentence of clause (i) above, the conveyance shall occur, and Lessee shall pay to Lessor the Stipulated Loss Value, the Rent, the expenses and Make-Whole Premium described in said clause (i) on the Stipulated Loss Value Date; provided that any Net Proceeds related to the Property then held by Lessor or the Servicer on behalf of the Indenture Trustee shall be credited against the portion of such purchase price payable to Lessor and the balance of Net Proceeds, if any, shall be paid to or retained by Lessee. In the event Lessee has made the election described in (ii) above and, upon approval notwithstanding diligent efforts in good faith, has failed to comply with the terms thereof within the periods described, then Lessee shall be deemed to have made the offer described in (i) above to purchase the Property and the Stipulated Loss Value Date shall be deemed to be the next succeeding date set forth on the Stipulated Loss Value Schedule occurring thirty (30) days after the expiration of the period described in (ii), or if there is no such date, the last date on Schedule 12.1, as the case may be, but in any event, only on a Rent Payment Date; provided, however, in the event Lessee has elected option (ii) above, and has not completed restoration as required therein within the time frame set forth in subclause (x) thereof, no Lease Default or Lease Event of Default is then existing, and the Guarantor has a Required Rating at least equal to the Trigger Rating, Lessee may elect, within ten (10) days prior to expiration of such period, in lieu of being deemed to make the offer described in clause (i) above, to continue to elect option (ii) above. Such election shall require Lessee to pay to Lessor, within thirty (30) days after demand therefor, an amount as required under Section 19.2(a). Nothing herein shall be deemed to affect Lessee's obligation to elect option (i) above to purchase the Property if Lessee has not completed restoration by six (6) months prior to the expiration of the Lease Term. In the event Lessor rejects the offer of Lessee to purchase the Property as provided in clause (i) of this Section 12.1 (which it may not do without the Servicer's written consent unless it first pays to the Servicer, acting on behalf of the Indenture Trustee, an amount sufficient to pay all amounts due in respect of the Secured Note[s] secured by the Administrative AgentProperty including, commence without limitation, the Make-Whole Premium, and diligently pursue all other amounts due and payable under any of the RestorationOperative Documents relating to the Property), the following amount shall be paid to or retained by Lessor on such Stipulated Loss Value Date: (A) all Net Proceeds related to the Property, provided that, if Lessee is self-insured (as permitted above) by means of deductibles, retained risks or no insurance whatsoever, Lessee shall pay such amounts or additional amounts so that Lessor receives in total (including any Net Proceeds) an amount that would have been paid by a third-party insurer under a customary commercial all-risk full replacement-value insurance policy substantially similar to that described in Schedule 9.01 without deductibles or retained risks (but in any case amounts paid to Lessor will not be in excess of the replacement value of the Improvements immediately preceding the Event of Loss, which replacement value shall be as mutually agreed between Lessee and Lessor and, failing such agreement within fifteen (15) days of the request of either party to do so, by the Appraisal Procedure), plus (B)unpaid Base Rent due and unpaid on or prior to such Stipulated Loss Value Date and Supplemental Rent due with respect to the Property for the period ending on such Stipulated Loss Value Date (excluding any Make-Whole Premium payable under clause (C), below), plus (C) the Make-Whole Premium, if any, payable by the Lessor as a consequence of the Lessor's prepayment of the Secured Notes in connection with such Event of Loss (even if Lessee's offer to purchase is rejected). For the avoidance of doubt, in the event that, despite the express provisions of the Lease to the contrary, the foregoing payments are ever made on a date which is not a Rent Payment Date, then Lessee shall pay Base Rent and Supplemental Rent up to and including the date of such payment with Base Rent for the semi-annual period in which the payment is made being prorated based on the number of days since the last Rent Payment Date to and including the date of such payment over the number of days in the payment period. If Lessor elects to reject the plan offer of restoration as submitted Lessee hereunder to purchase the Property pursuant to this Section 12.1 while the Secured Notes are outstanding, any notice of rejection shall only be effective, and Lessor shall only be entitled to reject such offer, if such notice is in writing and either such rejection is concurrently consented to in writing by the Borrower does not qualify as a Restoration Plan Servicer on behalf of the Indenture Trustee or is not approved Lessor pays to the Servicer (acting on behalf of the Indenture Trustee) all amounts then due and payable under the Secured Notes and all other amounts due and payable under any Operative Documents, and absent such repayment or consent by the Administrative Agent Servicer within the period referred to in accordance with this clausethe last sentence of clause (i) above, the Borrower and the Administrative Agent Lessor shall enter into negotiations be deemed to have accepted Lessee's offer. Upon payment in good faith with a view to agreeing on mutually acceptable terms full of the Restoration Plan.
amounts set forth in clauses (iiiA), (B) Funds on deposit and (C) of the second preceding paragraph (in the Loss Proceeds Account that are to be made available for restoration work pursuant to a Restoration Plan as event Lessor rejected Lessee's offer) or upon payment in full of the amounts set forth in clause (iii) above will be disbursed to pay the cost of the Restoration upon receipt by first sentence of this Section 12.1 and the Administrative Agent of a certificate conveyance of the Borrower that: Property to Lessee as provided herein (iin the event Lessor accepted (or is deemed to have accepted) all of the restoration work already completed was done substantially in compliance with the approved Restoration Plan, (ii) the sum requested is required Lessee's offer to pay for costs incurred in connection with such restoration work (giving a description of the services and materials provided in connection with such restoration workpurchase), (iii1) the sum requestedLease Term shall end, when added to all amounts and (2) the obligations of Lessee hereunder (other than any obligations expressed herein as surviving termination of this Lease) with respect to the relevant casualty event previously paid out of the Concentration Account or by the applicable Loan Party out of its Operating Accounts, does not exceed the aggregate amount then due and payable with respect to the restoration work done such Property shall terminate as of the date of such certificate, (iv) the amount of net proceeds with respect payment. Lessee shall continue to the Event of Loss remaining in the Concentration Account or the applicable Loan Party's Operating Accounts, together with any other amounts deposited in such accounts by the Borrower or any other Person or otherwise irrevocably committed to be made available to the Borrower make all Rent Payments as equity funds or Permitted Subordinated Debt (in each case, by the Investors or an Affiliate thereof or a Person that has at least an investment grade long-term unsecured (and not credit enhanced) debt rating or other credit status satisfactory to the Required Lenders) for the purpose of such restoration are anticipated to be sufficient to complete the restoration work in accordance with the Restoration Plan, (v) there exists no mechanic's, materialmen's or other Liens on the affected Property arising out when due hereunder until termination of the Restoration (except which are not yet due, adequately bonded, Permitted Liens or Lease as are being contested pursuant to Permitted Contest Provisions), or if the same do exist, they will be discharged with the funds received from the requested payment, and (vi) no Default or Event of Default has occurred and is continuingprovided herein.
Appears in 1 contract
Samples: Lease Agreement (Txu Corp /Tx/)
Event of Loss. (i) The Borrower shall promptly notify In the Administrative Agent upon the Borrower having Actual Knowledge event of any an Event of Loss that the Borrower believes will be a Material Loss. The Administrative Agent shall be entitled at its option to consult in any compromise, adjustment or settlement in connection with any Event of Loss under any policy or policies of insurance or any proceeding with respect to any condemnation Collateral with a fair market value (or other taking replacement cost, if greater) in excess of property of $1.0 million, AirGate or the Borrower or otherwise involving a Material Loss, and, with respect to any Material Loss, the Borrower shall within five (5) Business Days after the Administrative Agent's request reimburse the Administrative Agent for all out-of-pocket expenses (including reasonable attorneys' and experts' fees) incurred by the Administrative Agent in connection with such participation.
(ii) If a Material Loss occurs, unless the appropriate Loan Party elects not to restore such Property and such restoration, repair, replacement or rebuilding is not required under Prudent Industry Practice to operate and maintain such Loan Party's business operations at the applicable airport (in which event the Net Insurance Proceeds or Net Condemnation Proceedsaffected Guarantor, as the case may be, shall be applied will apply any Net Loss Proceeds from such Event of Loss to a mandatory prepayment the rebuilding, repair, replacement or construction of improvements to the Loans in accordance with Section 2.8(c)(iv)affected Property (the "Subject Property"), with no concurrent obligation to make any purchase of any Notes if AirGate delivers to the Borrower shall promptly (and in any event Trustee within 30 90 days after the occurrence of the such Event of Loss) deliver to the Administrative Agent a Restoration Plan and, upon approval thereof by the Administrative Agent, commence and diligently pursue the Restoration. If the plan of restoration as submitted by the Borrower does not qualify as a Restoration Plan or is not approved by the Administrative Agent in accordance with this clause, the Borrower and the Administrative Agent shall enter into negotiations in good faith with a view to agreeing on mutually acceptable terms of the Restoration Plan.:
(iii1) Funds on deposit in a written opinion from a reputable contractor that the Loss Proceeds Account that are to Subject Property can be made available for restoration work pursuant to a Restoration Plan as set forth in clause (ii) above will be disbursed to pay the cost of the Restoration upon receipt by the Administrative Agent of a certificate of the Borrower that: (i) all of the restoration work already completed was done substantially in compliance with the approved Restoration Planrebuilt, (ii) the sum requested is required to pay for costs incurred in connection with such restoration work (giving a description of the services repaired, replaced or constructed and materials provided in connection with such restoration work), (iii) the sum requested, when added to all amounts with respect to the relevant casualty event previously paid out of the Concentration Account or by the applicable Loan Party out of its Operating Accounts, does not exceed the aggregate amount then due and payable with respect to the restoration work done as of operating within 360 days from the date of such certificatecertification; and
(2) an Officers' Certificate certifying that AirGate or the affected Guarantor has available from Net Loss Proceeds (including amounts collectible from the applicable insurance carrier) or other sources sufficient funds to complete the rebuilding, repair, replacement or construction described in clause (iv1) above. Any Net Loss Proceeds that are not reinvested or not permitted to be reinvested as provided in the first sentence of this Section 4.23 will constitute Excess Loss Proceeds. When the aggregate amount of Excess Loss Proceeds received by AirGate and its Restricted Subsidiaries exceeds $10.0 million (and "Event of Loss Offer Triggering Event"), AirGate will make an offer, on a pro rata basis (an "Event of Loss Offer"), to all holders of Notes and all holders of other First Priority Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds resulting from an Event of Loss to purchase the maximum principal amount of Notes and such other First Priority Indebtedness that may be purchased out of the Excess Loss Proceeds. The offer price in any Event of Loss Offer will be equal to 100% of the principal amount plus accrued and unpaid interest, if any, to the purchase date and will be payable in cash. If any Excess Loss Proceeds remain after consummation of any purchase contemplated by an Event of Loss Offer, AirGate may use such Excess Loss Proceeds for any purpose not otherwise prohibited by this Indenture and the Security Documents. Upon completion of any such Event of Loss Offer, the amount of net proceeds with respect Excess Loss Proceeds shall be reset to zero. AirGate will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to an Event of Loss remaining in Offer. To the Concentration Account extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.23, AirGate will comply with the applicable Loan Party's Operating Accounts, together with any other amounts deposited in such accounts securities laws and regulations and will be deemed not to have breached its obligations under this Section 4.23 by the Borrower or any other Person or otherwise irrevocably committed to be made available to the Borrower as equity funds or Permitted Subordinated Debt (in each case, by the Investors or an Affiliate thereof or a Person that has at least an investment grade long-term unsecured (and not credit enhanced) debt rating or other credit status satisfactory to the Required Lenders) for the purpose virtue of such restoration are anticipated to be sufficient to complete the restoration work in accordance with the Restoration Plan, (v) there exists no mechanic's, materialmen's or other Liens on the affected Property arising out of the Restoration (except which are not yet due, adequately bonded, Permitted Liens or as are being contested pursuant to Permitted Contest Provisions), or if the same do exist, they will be discharged with the funds received from the requested payment, and (vi) no Default or Event of Default has occurred and is continuingconflict.
Appears in 1 contract
Samples: Indenture (Airgate PCS Inc /De/)
Event of Loss. (ia) The Borrower shall promptly notify the Administrative Agent upon After any Event of Loss, the Borrower having Actual Knowledge may apply the Net Loss Proceeds from the Event of Loss to the rebuilding, repair, replacement or construction of improvements to the Project, with no obligation to repay any Loans or other Senior Debt, provided, that with respect to any Event of Loss that results in Net Loss Proceeds equal to or greater than $100,000,000:
(i) the Borrower believes will be a Material Loss. The Administrative delivers to the Senior Facility Agent shall be entitled at its option to consult in any compromise, adjustment or settlement in connection with any within 120 days of such Event of Loss under any policy a written opinion from a reputable contractor that the Project can be rebuilt, repaired, replaced or policies constructed and operating within 540 days following such Event of insurance or any proceeding with respect to any condemnation or other taking of property of the Borrower or otherwise involving a Material Loss, ; and, with respect to any Material Loss, the Borrower shall within five (5) Business Days after the Administrative Agent's request reimburse the Administrative Agent for all out-of-pocket expenses (including reasonable attorneys' and experts' fees) incurred by the Administrative Agent in connection with such participation.
(ii) If the Borrower delivers to the Senior Facility Agent within 120 days of such Event of Loss a Material certificate from an Authorized Officer of the Borrower certifying that the applicable entity has available from Net Loss occursProceeds, unless cash on hand, binding equity commitments with respect to funds, anticipated insurance proceeds and/or available borrowings under Indebtedness permitted under Section 6.01 to complete the appropriate Loan Party elects not to restore such Property and such restorationrebuilding, repair, replacement or rebuilding is not required under Prudent Industry Practice construction described in clause (i) above and to operate and maintain such Loan Party's business operations at pay debt service on its Indebtedness during the applicable airport repair or restoration period.
(in which event b) If the Senior Facility Agent, on behalf of the Lenders, receives any excess Net Insurance Loss Proceeds or Net Condemnation Proceeds, as the case may be, shall be applied to the prepayment of Secured Debt and other Obligations as provided in the Common Terms Agreement and this Agreement does not require the Borrower to make a mandatory prepayment of the Loans in accordance with pursuant to Section 2.8(c)(iv))2.11(b) and this Section 5.06, the Borrower shall promptly (and instruct the Senior Facility Agent to deposit such proceeds in any event within 30 days after the occurrence of the Event of Loss) deliver to the Administrative Agent a Restoration Plan and, upon approval thereof by the Administrative Agent, commence and diligently pursue the Restoration. If the plan of restoration as submitted by the Borrower does not qualify as a Restoration Plan or is not approved by the Administrative Agent in accordance with this clauseConstruction Account, the Borrower and the Administrative Agent shall enter into negotiations in good faith with a view to agreeing on mutually acceptable terms of the Restoration Plan.
(iii) Funds on deposit in the Loss Proceeds Account that are to be made available for restoration work pursuant to a Restoration Plan as set forth in clause (ii) above will be disbursed to pay the cost of the Restoration upon receipt by the Administrative Agent of a certificate of the Borrower that: (i) all of the restoration work already completed was done substantially in compliance with the approved Restoration Plan, (ii) the sum requested is required to pay for costs incurred in connection with such restoration work (giving a description of the services and materials provided in connection with such restoration work), (iii) the sum requested, when added to all amounts with respect to the relevant casualty event previously paid out of the Concentration Account or by the applicable Loan Party out of its Operating Accounts, does not exceed the aggregate amount then due and payable with respect to the restoration work done as of the date of such certificate, (iv) the amount of net proceeds with respect to the Event of Loss remaining in the Concentration Revenue Account or the applicable Loan Party's Operating AccountsAccount, together with any other amounts deposited in such accounts by the Borrower or any other Person or otherwise irrevocably committed to be made available to the Borrower as equity funds or Permitted Subordinated Debt (in each case, by the Investors or an Affiliate thereof or a Person that has at least an investment grade long-term unsecured (and not credit enhanced) debt rating or other credit status satisfactory to the Required Lenders) for the purpose of such restoration are anticipated to be sufficient to complete the restoration work in accordance with the Restoration Plan, (v) there exists no mechanic's, materialmen's or other Liens on the affected Property arising out of the Restoration (except which are not yet due, adequately bonded, Permitted Liens or as are being contested pursuant to Permitted Contest Provisions), or if the same do exist, they will be discharged with the funds received from the requested paymentapplicable, and (vi) no Default or Event of Default has occurred and is continuingthe Senior Facility Agent shall be required to make such deposit.
Appears in 1 contract
Event of Loss. (ia) The Borrower shall promptly notify the Administrative Agent upon the Borrower having Actual Knowledge of any Event of Loss that the Borrower believes will be a Material Losswith Respect to an Airframe. The Administrative Agent shall be entitled at its option to consult in any compromise, adjustment or settlement in connection with any If an Event of Loss under any policy occurs (or policies an event or circumstance which, with the passage of insurance or any proceeding time, would constitute an Event of Loss occurs) with respect to any condemnation an Airframe or other taking of property of the Borrower or otherwise involving a Material Lossan Aircraft, and, with respect to any Material Loss, the Borrower shall within five (5) Business Days after the Administrative Agent's request reimburse the Administrative Agent for all out-of-pocket expenses (including reasonable attorneys' and experts' fees) incurred by the Administrative Agent in connection with such participation.
(ii) If a Material Loss occurs, unless the appropriate Loan Party elects not to restore such Property and such restoration, repair, replacement or rebuilding is not required under Prudent Industry Practice to operate and maintain such Loan Party's business operations at the applicable airport (in which event the Net Insurance Proceeds or Net Condemnation Proceeds, as the case may be, shall be applied to a mandatory prepayment of the Loans in accordance with Section 2.8(c)(iv)), the Borrower Grantors shall promptly (and in any event within 30 10 days after the occurrence of such Event of Loss or other event or circumstance and otherwise in accordance with the Credit Agreement) notify the Administrative Agent thereof and, to the extent required by Section 2.12(a) of the Credit Agreement (all calculations under Section 6.06 of the Credit Agreement to be performed after giving effect to such Event of Loss) deliver ), deposit within 3 Business Days of receipt all Net Cash Proceeds thereof, if any, received by a Grantor (and not paid directly by an insurer to the Administrative Agent pursuant to a Restoration Plan loss payee clause as provided in Section 2.03 hereof) into an account that is maintained with the Administrative Agent pursuant to Section 2.12(a) of the Credit Agreement and subject to an Account Control Agreement. The applicable Grantor may use Net Cash Proceeds held by the Administrative Agent (including Net Cash Proceeds in the form of insurance proceeds paid directly by an insurer to the Administrative Agent as aforesaid) to replace, as soon as reasonably possible, the Airframe or Aircraft which suffered such Event of Loss in accordance with this Section 3.01(a), but subject to the provisions of Section 2.12(a) and any other applicable provisions of the Credit Agreement. Each Grantor's right to substitute a Replacement Airframe (together with the same number of Replacement Engines as the number of Engines, if any, installed on such Airframe at the time such Event of Loss occurred) shall be subject to the fulfillment, at Grantors' sole cost and expense, of the following conditions precedent:
(i) on the date when such Replacement Airframe is subjected to the Lien of this Mortgage, the following documents shall have been duly authorized, executed and delivered by the respective party or parties thereto and shall be in full force and effect, and an executed counterpart of each thereof shall have been delivered to the Administrative Agent:
(A) a Mortgage Supplement covering such Replacement Airframe and each Replacement Engine shall have been duly filed for recordation pursuant to Title 49 or such other applicable law of such jurisdiction other than the United States in which such Replacement Airframe is registered in accordance with Section 2.01(e);
(B) an Officer's Certificate of a Responsible Officer of such Grantor stating that (1) such Replacement Airframe (and any Replacement Engine) constitutes Cure Collateral pursuant to the definition thereof set forth in the Credit Agreement and (2) each of the conditions specified in this Section 3.01(a) with respect to such Replacement Airframe and any comparable provisions of any Permitted Lease to which such Airframe is subject, as the case may be, have been satisfied; and
(C) UCC financing statements (and any similar statements or other documents required to be filed or delivered pursuant to the laws of the jurisdiction in which such Replacement Airframe may be registered and registrations on the International Registry) as are deemed necessary or, by reference to prudent industry practice, desirable by counsel for the Administrative Agent to protect the security interests of the Administrative Agent in such Replacement Airframe and each Replacement Engine shall have been duly filed;
(ii) such Grantor shall furnish the Administrative Agent with (A) upon approval thereof recordation, an opinion of qualified FAA counsel, or if applicable, qualified Opinion of Counsel in the jurisdiction of the relevant Aircraft's registration addressed to the Administrative Agent as to the due recordation of the Mortgage Supplement as a first priority Lien on the Replacement Airframe and Replacement Engine, if any, and the due registration of the International Interest of the Administrative Agent in such Replacement Airframe and Replacement Engine, if any, as a first priority International Interest therein, and stating that the Replacement Airframe and/or Replacement Engine, is free from Liens of record (except for or with respect to Permitted Collateral Liens) and International Interests of record (other than with respect to any Refinancing Debt or any Junior Secured Debt), (B) an Opinion of Counsel as to the availability of the benefits of Section 1110 of the Bankruptcy Code to the same extent as for the Airframe and Engines being replaced, and (C) such satisfactory evidence of compliance with the insurance provisions of Section 2.03 hereof with respect to such Replacement Airframe and each Replacement Engine as the Administrative Agent may reasonably request;
(iii) such Grantor shall have delivered to the Administrative Agent (A) a copy of the xxxx(s) of sale respecting such Replacement Airframe, each Replacement Engine, if any, or other evidence of a Grantor's ownership of such Replacement Airframe and each Replacement Engine, reasonably satisfactory to the Administrative Agent and such Grantor shall cause (subject, if necessary, to the consent of the prior owner of the Replacement Airframe and/or Replacement Engine) the sale of the Replacement Airframe and each Replacement Engine effected by such xxxx(s) of sale (or other evidence) to be registered with the International Registry as a sale, and (B) appropriate instruments assigning to the Administrative Agent the benefits, if any, of all manufacturer's and vendor's warranties generally available and permitted to be assigned by a Grantor with respect to such Replacement Airframe and each Replacement Engine; and
(iv) such Grantor shall have satisfied any additional conditions (including the furnishing of an appraisal to the extent required under the Credit Agreement) to replacement as shall reasonably be specified by the Administrative Agent, commence acting reasonably. For all purposes hereof, each such Replacement Airframe shall be deemed to be subjected to the Lien of this Mortgage and diligently pursue shall be deemed an “Airframe”, and the RestorationLien of this Mortgage shall still cover such replaced Airframe.
(b) Event of Loss with Respect to an Engine or Spare Engine. If an Event of Loss occurs (or an event or circumstance which, with the plan passage of restoration time, would constitute an Event of Loss occurs) with respect to an Engine or a Spare Engine under circumstances in which there has not occurred an Event of Loss or such other event or circumstance, as submitted the case may be, with respect to the related Airframe (if any), Grantors shall promptly (and in any event within 10 days after the occurrence of such Event of Loss or such other event or circumstance, as the case may be) notify the Administrative Agent thereof and, to the extent required by Section 2.12(a) of the Borrower does Credit Agreement (all calculations under Section 6.06 of the Credit Agreement to be performed after giving effect to such Event of Loss and otherwise in accordance with the Credit Agreement), deposit within 3 Business Days of receipt all Net Cash Proceeds thereof, if any, received by a Grantor (and not qualify paid directly by an insurer to the Administrative Agent pursuant to a loss payee clause as a Restoration Plan or provided in Section 2.03 hereof) into an account that is not approved maintained with the Administrative Agent and subject to an Account Control Agreement pursuant to Section 2.12(a) of the Credit Agreement. The applicable Grantor may use Net Cash Proceeds held by the Administrative Agent (including Net Cash Proceeds in the form of insurance proceeds paid directly by an insurer to the Administrative Agent as aforesaid) to, as soon as reasonably possible, replace the Engine or Spare Engine which suffered such Event of Loss in accordance with this clauseSection 3.01(b), but subject to the provisions of Section 2.12(a) and any other applicable provisions of the Credit Agreement. Upon application of such Net Cash Proceeds, the Borrower applicable Grantor shall substitute an engine (that is reasonably satisfactory to the Appraisers), free and clear of all Liens (other than Specified Permitted Collateral Liens or other Permitted Collateral Liens that are subordinated to the Liens granted to the Administrative Agent hereunder) and cause such engine to be subject to the Lien of this Mortgage. Each Grantor's right to make a replacement hereunder shall be subject to the fulfillment (which may be simultaneous with such replacement) of the following conditions precedent at Grantors' sole cost and expense and the Administrative Agent agrees to make reasonable efforts to cooperate with Grantors to the extent reasonably necessary to enable it to timely satisfy such conditions:
(i) the following documents shall enter into negotiations in good faith with be duly authorized, executed and delivered by the respective party or parties thereto, and an executed counterpart of each shall be delivered to the Administrative Agent:
(A) a view Mortgage Supplement covering the Replacement Engine, which shall have been duly filed for recordation pursuant to agreeing on mutually acceptable terms Title 49 or such other applicable law of the Restoration Plan.jurisdiction other than the United States in which the aircraft of which such Replacement Engine is a part is registered in accordance with Section 2.01(e), as the case may be;
(iiiB) Funds on deposit in an Officer's Certificate of a Responsible Officer of such Grantor stating (i) that the Loss Proceeds Account that are to be made available for restoration work Replacement Engine constitutes Cure Collateral pursuant to a Restoration Plan as the definition thereof set forth in clause the Credit Agreement and (ii) above will be disbursed to pay the cost each of the Restoration conditions specified in this paragraph (b) with respect to such Replacement Engine, and any comparable provisions of any Permitted Lease to which such Engine is subject, have been satisfied;
(C) UCC financing statements covering the security interests created by this Mortgage (and any similar statements or other documents required to be filed or delivered pursuant to the laws of the jurisdiction in which such aircraft may be registered or in the International Registry) as are deemed necessary or, by reference to prudent industry practice, desirable by counsel to the Administrative Agent to protect the security interests of the Administrative Agent in the Replacement Engine shall have been duly filed;
(D) upon receipt request by the Administrative Agent, such Grantor shall furnish the Administrative Agent with (1) upon recordation, an opinion of a certificate qualified FAA counsel, or if applicable, qualified counsel in the jurisdiction of the Borrower that: relevant Aircraft's registration addressed to the Administrative Agent (iin either case which opinion and counsel shall be reasonably satisfactory to the Administrative Agent), as to (a) all the due recordation of the restoration work already completed was done substantially Mortgage Supplement as a first priority Lien on the Replacement Engine, and the due registration of the International Interest of the Administrative Agent in such Replacement Engine as a first priority International Interest therein, stating that the Replacement Engine is free from Liens of record (except for or with respect to Permitted Collateral Liens) and of International Interests of record (other than with respect to any Refinancing Debt and any Junior Secured Debt), and (2) such evidence of compliance with the approved Restoration Planinsurance provisions of Section 2.03 hereof with respect to such Replacement Engine as the Administrative Agent may reasonably request;
(E) such Grantor shall have delivered to the Administrative Agent (1) a copy of the xxxx of sale respecting such Replacement Engine or other evidence of such Grantor's ownership of such Replacement Engine, reasonably satisfactory to the Administrative Agent and such Grantor shall cause (subject to the consent of the prior owner of the Replacement Engine) the sale of such Replacement Engine effected by said xxxx of sale (or other evidence) to be registered with the International Registry as a sale, and (2) appropriate instruments assigning to the Administrative Agent the benefits, if any, of all manufacturer's and vendor's warranties generally available and permitted to be assigned by a Grantor with respect to such Replacement Engine; and
(ii) Such Grantor shall have satisfied any additional conditions (including the sum requested is required to pay for costs incurred in connection with such restoration work (giving a description furnishing of the services and materials provided in connection with such restoration work), (iii) the sum requested, when added to all amounts with respect an appraisal to the relevant casualty event previously paid out of extent required under the Concentration Account or Credit Agreement) to replacement as shall reasonably be specified by the applicable Loan Party out of its Operating AccountsAdministrative Agent, does not exceed the aggregate amount then due and payable with respect acting reasonably. For all purposes hereof, each such Replacement Engine shall be deemed to be subjected to the restoration work done as Lien of this Mortgage and shall be deemed an “Engine” and the date Lien of this Mortgage shall no longer still cover such certificate, (iv) the amount of net proceeds with respect to the Event of Loss remaining in the Concentration Account or the applicable Loan Party's Operating Accounts, together with any other amounts deposited in such accounts by the Borrower or any other Person or otherwise irrevocably committed to be made available to the Borrower as equity funds or Permitted Subordinated Debt (in each case, by the Investors or an Affiliate thereof or a Person that has at least an investment grade long-term unsecured (and not credit enhanced) debt rating or other credit status satisfactory to the Required Lenders) for the purpose of such restoration are anticipated to be sufficient to complete the restoration work in accordance with the Restoration Plan, (v) there exists no mechanic's, materialmen's or other Liens on the affected Property arising out of the Restoration (except which are not yet due, adequately bonded, Permitted Liens or as are being contested pursuant to Permitted Contest Provisions), or if the same do exist, they will be discharged with the funds received from the requested payment, and (vi) no Default or Event of Default has occurred and is continuingreplaced Engine.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Delta Air Lines Inc /De/)
Event of Loss. (i) The Borrower shall promptly notify the Administrative Agent upon the Borrower having Actual Knowledge of any Event of Loss that the Borrower believes will be a Material Loss. The Administrative Agent shall be entitled at its option to consult in any compromise, adjustment or settlement in connection with any Event of Loss under any policy or policies of insurance or any proceeding If with respect to any condemnation Transponder an Event of Loss occurs, then PanAmSat shall forthwith (and, in any event, within seven days of such occurrence) give Agent notice of such Event of Loss (the "Casualty Notice"), which Casualty Notice shall include, if applicable, PanAmSat's election to provide a Replacement Transponder in accordance with Sections 2.10(a) or other taking 18(e) and shall also state whether the proviso to the third sentence of property this Section 2.10(a) shall be applicable by reason of PanAmSat's having in force insurance against loss or damage to the Borrower Transponders, pursuant to Section 19 or otherwise involving voluntarily. The Loans and the Notes shall be prepaid, in part as provided below, upon the occurrence of an Event of Loss with respect to any Transponder with respect to which PanAmSat has not in the Casualty Notice chosen to provide a Material LossReplacement Transponder. Such prepayment shall be applied in accordance with Section 5.4 and shall be made on the date (the "Casualty Payment Date") specified on Exhibit 4 hereto first occurring not less than 30 days after the date of such Casualty Notice; provided, andhowever, that if, with respect to such Transponder, PanAmSat shall have in force insurance against loss or damage to the Transponders, pursuant to Section 19 or voluntarily, then such prepayment shall be made within ten days after receipt of any Material such insurance proceeds (but in no event later than 120 days after the date of such Casualty Notice). Each prepayment pursuant to this Section 2.10(a) shall be in an amount equal to the Applicable Principal Amount with respect to the Transponder that suffered the Event of Loss, together with accrued and unpaid interest on the Borrower principal amount so prepaid to, but excluding, the related Casualty Payment Date; provided that no Break Funding Costs, if any, shall within five (5) Business Days after the Administrative Agent's request reimburse the Administrative Agent for all out-of-pocket expenses (including reasonable attorneys' and experts' fees) incurred by the Administrative Agent be due or payable in connection with such participation.
(iiprepayment. Each prepayment of principal pursuant to this Section 2.10(a) If a Material Loss occurs, unless the appropriate Loan Party elects not to restore such Property and such restoration, repair, replacement or rebuilding is not required under Prudent Industry Practice to operate and maintain such Loan Party's business operations at the applicable airport (in which event the Net Insurance Proceeds or Net Condemnation Proceeds, as the case may be, shall be applied to a mandatory prepayment the pro rata reduction of all remaining principal installments of the Loans in accordance with Section 2.8(c)(iv)), Notes. In lieu of making the Borrower shall promptly (and in any event within 30 days after the occurrence of the Event of Loss) deliver to the Administrative Agent a Restoration Plan and, upon approval thereof by the Administrative Agent, commence and diligently pursue the Restoration. If the plan of restoration as submitted by the Borrower does not qualify as a Restoration Plan or is not approved by the Administrative Agent in accordance with this clause, the Borrower and the Administrative Agent shall enter into negotiations in good faith with a view to agreeing on mutually acceptable terms of the Restoration Plan.
(iii) Funds on deposit in the Loss Proceeds Account that are to be made available for restoration work pursuant to a Restoration Plan as set forth in clause (ii) above will be disbursed to pay the cost of the Restoration upon receipt by the Administrative Agent of a certificate of the Borrower that: (i) all of the restoration work already completed was done substantially in compliance with the approved Restoration Plan, (ii) the sum requested is required to pay for costs incurred in connection with such restoration work (giving a description of the services and materials provided in connection with such restoration work), (iii) the sum requested, when added to all amounts with respect to the relevant casualty event previously paid out of the Concentration Account or by the applicable Loan Party out of its Operating Accounts, does not exceed the aggregate amount then due and payable with respect to the restoration work done as of the date of such certificate, (iv) the amount of net proceeds with respect to the Event of Loss remaining in the Concentration Account or the applicable Loan Party's Operating Accounts, together with any other amounts deposited in such accounts by the Borrower or any other Person or otherwise irrevocably committed to be made available to the Borrower as equity funds or Permitted Subordinated Debt (in each case, by the Investors or an Affiliate thereof or a Person that has at least an investment grade long-term unsecured (and not credit enhanced) debt rating or other credit status satisfactory to the Required Lenders) for the purpose of such restoration are anticipated to be sufficient to complete the restoration work in accordance with the Restoration Plan, (v) there exists no mechanic's, materialmen's or other Liens on the affected Property arising out of the Restoration (except which are not yet due, adequately bonded, Permitted Liens or as are being contested pursuant to Permitted Contest Provisions), or if the same do exist, they will be discharged with the funds received from the requested paymentforegoing prepayment, and (vi) so long as, but only so long as, no Bankruptcy Default or Event of Default has occurred and is continuing, PanAmSat may, at its option, notify Agent of its intent to, and thereafter provide (on the Casualty Payment Date first occurring not less than 30 days after the date of the Casualty Notice) a Replacement Transponder, in accordance with, and subject to, the provisions and the conditions in Section 18(e). Upon payment in full of the prepayment due under this Section 2.10(a) or the provision of a Replacement Transponder pursuant to the preceding sentence, (i) the Transponder suffering such Event of Loss to PanAmSat shall no longer be deemed to be part of the Collateral Security and shall be released from the Lien of this Agreement, and (ii) if applicable, the Replacement Transponder shall become part of the Collateral Security and shall be subject to the Lien of this Agreement.
Appears in 1 contract
Event of Loss. If there should be an Event of Loss after commencement but prior to completion of the construction of the Improvements, Lessee shall repair all damage, regardless of the availability of insurance proceeds and continue to pay all Rent without abatement of any kind. If there shall occur (i) The Borrower shall promptly notify the Administrative Agent upon the Borrower having Actual Knowledge of any an Event of Loss that to the Borrower believes will be a Material Loss. The Administrative Agent shall be entitled at its option Existing Building pursuant to consult in any compromise, adjustment the terms of the Building Lease prior to substantial completion of the Improvements and the Lessee thereunder agrees to purchase the Affected Property pursuant to the terms of the Building Lease or settlement in connection with any (ii) an Event of Loss under any policy to the Improvements following substantial completion of construction of the Improvements (or policies of insurance or any proceeding with respect to any condemnation or other taking prior to completion of property construction of the Borrower or otherwise involving a Material Loss, and, Improvements) with respect to any Material Lossthe Property (the “Affected Property (for purposes of this Lease, the Borrower shall within five (5) Business Days after Affected Property being the Administrative Agent's request reimburse the Administrative Agent for all out-of-pocket expenses (including reasonable attorneys' and experts' fees) incurred by the Administrative Agent in connection with such participation.
(ii) If a Material Loss occurs, unless the appropriate Loan Party elects not to restore such Property and such restoration, repair, replacement or rebuilding is not required under Prudent Industry Practice to operate and maintain such Loan Party's business operations at the applicable airport (in which event the Net Insurance Proceeds or Net Condemnation Proceeds, as the case may be, shall be applied to a mandatory prepayment of the Loans in accordance with Section 2.8(c)(iventire Property)”), the Borrower Lessee shall promptly give Lessor prompt written notice thereof and elect, within sixty (and in any event within 30 60) days after the occurrence of the Event of Loss, one of the following options:
(i) deliver Offer to purchase the Affected Property from Ground Lessor, on a Rent Payment Date, (the “Stipulated Loss Value Date”), and which Rent Payment Date shall be the first Rent Payment Date at least forty (40) days after Ground Lessor accepts such offer, for a purchase price equal to the Administrative Agent sum of (A) the Stipulated Loss Value for the Affected Property, determined as of such Stipulated Loss Value Date, plus (B) all unpaid Rent with respect to the Affected Property due but unpaid through such Stipulated Loss Value Date, plus (C) an amount equal to the reasonable out-of-pocket attorneys’ fees of Ground Lessor and Lessor relating to the purchase by Lessee as a Restoration Plan result of such Event of Loss. Ground Lessor (subject to the consent of the Lender), shall have sixty (60) days from the date of receipt of Lessee’s offer to decide whether to reject such offer. If Lessee has not received a response after forty (40) days, it may send a second notice to the foregoing parties, stating clearly in boldface that Ground Lessor’s failure to reject such offer by the later of (i) the original sixty (60) day period, or (ii) ten (10) days after delivery of such second notice, shall be deemed Ground Lessor’s acceptance of such offer; or
(ii) Restore and rebuild the Improvements damaged as a result of such Event of Loss (regardless of the availability of any insurance proceeds) so as to have a value, utility and remaining useful life as nearly as reasonably practicable equal to the value, utility and remaining useful life of the Affected Property immediately prior to such Event of Loss, and in all events as required by Section 8.2, such restoration to be done as expeditiously as is commercially reasonable and to be substantially completed, subject to force majeure, within twenty four months from the date of the Event of Loss, and in any event by the expiration of the Lease Term (and Lessee shall remain liable for the completion of such restoration beyond the expiration of the Lease Term to the extent not completed prior to such expiration but Lessee’s obligation to complete the Improvements shall not constitute a holdover by Lessee, who shall be granted access to the Property for such completion). In the event, due to force majeure events, restoration cannot be completed by the expiration of the Term, Lessee shall diligently complete the restoration thereafter and shall be liable to pay Base Rent (based on the Base Rent in effect on the day prior to the expiration of the Term (on a per diem basis)) and Supplemental Rent, until such restoration is complete. Notwithstanding the options described in subsections 12.1(i) and (ii) and following completion of construction of the Improvements if the Event of Loss occurs in the last two (2) years of the Term, Lessee shall have the right to terminate the Lease effective as of the date of delivery of a notice of termination to Lessor not later than sixty (60) days following the Event of Loss. Upon such termination Lessor shall be entitled to all insurance proceeds and Lessee shall credit Lessor with all deductible amounts and Rent until the effective date of such termination. Lessee shall not have the right to terminate this Lease if Lessee has exercised or intends to exercise its early termination right as provided for in the definition of Base Term. In other words Lessee does not, under any circumstances, have the right to exercise both rights of early termination and the right to terminate this Lease upon an Event of Loss pursuant to this paragraph. If Lessee makes an offer to purchase pursuant to clause (i) above of this Section 12.1, and Ground Lessor accepts such offer or is deemed to accept such offer within the sixty (60) day period referred to in the last sentence of clause (i) above, the conveyance shall occur, and Lessee shall pay to Ground Lessor the Stipulated Loss Value and Rent described in said clause (i) on the Stipulated Loss Value Date; provided that any Net Proceeds related to the Affected Property then held by Ground Lessor or the Lender shall be credited against the portion of such purchase price payable to Ground Lessor and the balance of Net Proceeds, if any, shall be paid to or retained by Lessee. Concurrently with the payment in full of the amounts payable pursuant to said clause (i), the terms of Article 22 shall be complied with. In the event Ground Lessor rejects the offer of Lessee to purchase the Affected Property as provided in clause (i) of this Section 12.1 (which it may not do without the Lender’s written consent unless it first pays to the Lender an amount sufficient to pay all amounts due Lender with respect to the Affected Property ), the following amount shall be paid to or retained by Lessor on such Stipulated Loss Value Date: (A) all Net Proceeds related to the Affected Property, provided that, if Lessee is self-insured (as permitted above) by means of deductibles, retained risks or no insurance whatsoever, Lessee shall pay such amounts or additional amounts so that Lessor receives in total (including any Net Proceeds) an amount that would have been paid by a third-party insurer under a customary commercial all-risk full replacement-value insurance policy substantially similar to that described in Schedule 9.01(a)(ii) without deductibles or retained risks (but in any case amounts paid to Lessor will not be in excess of the replacement value of the Improvements immediately preceding the Event of Loss, which replacement value shall be as mutually agreed between Lessee and Lessor and, upon approval thereof failing such agreement within fifteen (15) days of the request of either party to do so, by the Administrative AgentAppraisal Procedure), commence plus (B) unpaid Rent due with respect to the Affected Property on and diligently pursue the Restorationthrough such Stipulated Loss Value Date. If the plan of restoration as submitted by the Borrower does not qualify as a Restoration Plan or is not approved by the Administrative Agent Upon payment in accordance with this clause, the Borrower and the Administrative Agent shall enter into negotiations in good faith with a view to agreeing on mutually acceptable terms full of the Restoration Plan.
amounts set forth in clauses (iiiA) Funds on deposit and (B) of the preceding paragraph (in the Loss Proceeds Account that are to be made available for restoration work pursuant to a Restoration Plan as event Ground Lessor rejected Lessee’s offer) or upon payment in full of the amounts set forth in clause (iii) above will be disbursed to pay the cost of the Restoration upon receipt by the Administrative Agent first sentence of a certificate this Section 12.1 and consummation of the Borrower that: sale to Lessee (ior its designee) all of (in the restoration work already completed was done substantially in compliance with the approved Restoration Plan, (ii) the sum requested is required event Ground Lessor accepted Lessee’s offer to pay for costs incurred in connection with such restoration work (giving a description of the services and materials provided in connection with such restoration workpurchase), (iii1) the sum requestedLease Term shall end, when added to all amounts with respect to and (2) the relevant casualty event previously paid out obligations of the Concentration Account or by the applicable Loan Party out Lessee hereunder (other than any obligations expressed herein as surviving termination of its Operating Accounts, does not exceed the aggregate amount then due and payable with respect to the restoration work done this Lease) shall terminate as of the date of such certificatepayment. If Ground Lessor elects to reject the offer of Lessee hereunder to purchase the Property pursuant to this Section 12.1 while a Mortgage encumbers the Property, (iv) any notice of rejection shall only be effective, and Ground Lessor shall only be entitled to reject such offer, if such notice is in writing and either such rejection is concurrently consented to in writing by the amount Lender or Ground Lessor concurrently with delivery of net proceeds its rejection notice pays to the Lender all amounts secured by the Mortgage with respect to the Event of Loss remaining Affected Property, and reasonably evidences such payment to Lessee, and absent such repayment or consent by the Lender within the period referred to in the Concentration Account or the applicable Loan Party's Operating Accountslast sentence of clause (i) above, together with any other amounts deposited in such accounts by the Borrower or any other Person or otherwise irrevocably committed Ground Lessor shall be deemed to be made available to the Borrower as equity funds or Permitted Subordinated Debt (in each case, by the Investors or an Affiliate thereof or a Person that has at least an investment grade long-term unsecured (and not credit enhanced) debt rating or other credit status satisfactory to the Required Lenders) for the purpose of such restoration are anticipated to be sufficient to complete the restoration work in accordance with the Restoration Plan, (v) there exists no mechanic's, materialmen's or other Liens on the affected Property arising out of the Restoration (except which are not yet due, adequately bonded, Permitted Liens or as are being contested pursuant to Permitted Contest Provisions), or if the same do exist, they will be discharged with the funds received from the requested payment, and (vi) no Default or Event of Default has occurred and is continuinghave accepted Lessee’s offer.
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Event of Loss. (i) The Borrower shall promptly notify Upon the Administrative Agent upon the Borrower having Actual Knowledge occurrence of any an Event of Loss that with respect to the Borrower believes will Airframe or the Airframe and the Engines and/or engines then installed thereon, Lessee shall notify Lessor thereof within two (2) days of the date thereof. Sixty (60) days after such Event of Loss (the date of which shall be a Material determined in accordance with the definition of Event of Loss) or the date insurance proceeds are received in respect thereto, whichever shall be the earlier date, Lessee shall pay to Owner the Stipulated Loss Value of the Aircraft, together with any other sums then due under the Lease and Lessor's and Owner's costs and expenses related to such Event of Loss. The Administrative Agent Upon making such Stipulated Loss Value payment in respect hereof and all sums due and owing with respect thereto, Lessee's obligation to pay further Basic Rent for the Aircraft shall cease and the Lease shall terminate. Upon Owner's receipt of the Stipulated Loss Value of the Aircraft, together with any other sums then due under the Lease, together with Lessor's and Owner's costs and expenses related to such Event of Loss, Lessor shall procure the delivery to Lessee or insurers to Lessee, depending upon the direction of the insurers which have paid Owner the Stipulated Loss Value, Owner's title to the Aircraft such title to be strictly "AS IS" and "WHERE IS" without any warranties whatsoever, except that there are no liens arising through Owner, whereupon Lessee shall be entitled at its option to consult recover possession of the Aircraft, unless possession thereof is required to be delivered to an insurance carrier in any compromise, adjustment or settlement in connection with any order to settle an insurance claim arising out of such Event of Loss Loss. Neither Owner nor Lessor shall be under any policy duty to Lessee to pursue any claim to recover 11 the Aircraft or policies of insurance or any proceeding with respect Engines, but Lessee may, at Lessee's expense, pursue same in such manner as may be satisfactory to any condemnation or other taking of property Lessor and the Owner. Proceeds of the Borrower insurance required in Section 12 (headed "Insurance") herein below, if paid to Owner, Lessor, or otherwise involving a Material Loss, and, with respect the Lender prior to any Material Loss, the Borrower shall within five (5) Business Days after time Lessee is required to pay the Administrative Agent's request reimburse the Administrative Agent for all out-of-pocket expenses (including reasonable attorneys' and experts' fees) incurred by the Administrative Agent in connection with such participation.
(ii) If a Material Stipulated Loss occurs, unless the appropriate Loan Party elects not to restore such Property and such restoration, repair, replacement or rebuilding is not required under Prudent Industry Practice to operate and maintain such Loan Party's business operations at the applicable airport (in which event the Net Insurance Proceeds or Net Condemnation Proceeds, as the case may beValue, shall be applied to a mandatory prepayment of the Loans in accordance with Section 2.8(c)(iv)), the Borrower shall promptly (and in any event within 30 days after the occurrence of the Event of Loss) deliver to the Administrative Agent a Restoration Plan and, upon approval thereof by the Administrative Agent, commence and diligently pursue the Restoration. If the plan of restoration as submitted by the Borrower does not qualify as a Restoration Plan or is not approved by the Administrative Agent in accordance with this clause, the Borrower and the Administrative Agent shall enter into negotiations in good faith with a view to agreeing on mutually acceptable terms of the Restoration Plan.
(iii) Funds on deposit in the Loss Proceeds Account that are to be made available for restoration work pursuant to a Restoration Plan as set forth in clause (ii) above will be disbursed to pay the cost of the Restoration upon receipt by the Administrative Agent of a certificate of the Borrower that: (i) all of the restoration work already completed was done substantially in compliance with the approved Restoration Plan, (ii) the sum requested is required to pay for costs incurred in connection with such restoration work (giving a description of the services and materials provided in connection with such restoration work), (iii) the sum requested, when added to all amounts with respect to the relevant casualty event previously paid out of the Concentration Account or by the applicable Loan Party out of its Operating Accounts, does not exceed the aggregate amount then due and payable with respect to the restoration work done as of the date of such certificate, (iv) the amount of net proceeds with respect to the Event of Stipulated Loss remaining in the Concentration Account or the applicable Loan Party's Operating Accounts, together with any other amounts deposited in such accounts Value otherwise payable by the Borrower or any other Person or otherwise irrevocably committed to be made available to the Borrower as equity funds or Permitted Subordinated Debt (in each case, by the Investors or an Affiliate thereof or a Person that has at least an investment grade long-term unsecured (and not credit enhanced) debt rating or other credit status satisfactory to the Required Lenders) for the purpose of such restoration are anticipated to be sufficient to complete the restoration work in accordance with the Restoration Plan, (v) there exists no mechanic's, materialmen's or other Liens on the affected Property arising out of the Restoration (except which are not yet due, adequately bonded, Permitted Liens or as are being contested pursuant to Permitted Contest Provisions), or if the same do exist, they will be discharged with the funds received from the requested payment, and (vi) no Default or Event of Default has occurred and is continuingLessee.
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