Common use of Excess Cash Balances Clause in Contracts

Excess Cash Balances. In furtherance of, and without limiting, the obligations of the Liquidating Trust to FGP under Section 5.4 of this Agreement, the Liquidating Trust agrees that for a period ending on the later of three months following the Merger Closing Date or for so long as any matters related to the Post-Merger Adjustments are pending, the Liquidating Trust agrees that it will maintain Excess Cash Balances (as herein defined) of not less than $5,000,000. In addition to the obligations of the Liquidating Trust under the preceding sentence, the Liquidating Trust agrees that for a period ending (subject to Section 4.1) on the earlier of (i) the final settlement, dismissal, resolution or judgment with respect to the lawsuit filed by Child Abuse Prevention and Volunteer Center against the Corporation (the "CAP Lawsuit") or (ii) the date upon which the Liquidating Trust obtains a loss mitigation insurance policy with respect to the CAP Lawsuit, with a coverage amount of at least $10,000,000 and on terms substantially similar to those obtained by the Corporation in its loss mitigation insurance policy, issued on or about the date hereof, with respect to the Commerce Job Journal lawsuit against the Corporation (if any such date occurs, the "CAP Insurance Date"), the Liquidating Trust agrees that it will maintain Excess Cash Balances of not less than $10,000,000, it being agreed that the Excess Cash Balance requirement set forth in the first sentence of this Section 5.7 and the Excess Cash Balance requirement set forth in the second sentence of this Section 5.7 shall be mutually exclusive and independent of each other. Notwithstanding the foregoing, the Liquidating Trust shall be under no obligation to obtain any such insurance with respect to the CAP Lawsuit. For this purpose, the "Excess Cash Balance" of the Liquidating Trust shall mean the cash and cash equivalents (it being agreed that cash equivalents shall include, without limitation, the amounts due to the Liquidating Trust under the Promissory Note Secured by Deed of Trust made by FGP in favor of the Liquidating Trust as set forth on Schedule A hereto) held by the Liquidating Trust in excess of the amount of cash and cash equivalents that the Liquidating Trust is holding to satisfy its other claims, expenses, charges, liabilities and obligations (including contingent or unliquidated claims). At the Merger Closing Date and from time to time thereafter during the pendency of the Liquidating Trust's obligations under this Section 5.7, upon the reasonable request of FGP, the Trustee shall provide to FGP a certification, in form and substance reasonably satisfactory to FGP, setting forth the Excess Cash Balances of the Liquidating Trust and the basis of such calculation.

Excess Cash Balances. In furtherance of, and without limitingIf on the last Business Day of any week while there are any Borrowings outstanding, the Borrower or any other Credit Party have any cash or cash equivalents in excess of $90,000,000 in the aggregate (other than, without duplication, (i) cash collateral with respect to Letters of Credit, (ii) any cash set aside and to be used to pay royalty or other production revenue obligations of the Liquidating Trust Credit Parties for amounts which have accrued to FGP under Section 5.4 unaffiliated third parties, (iii) any cash set aside to and to be used to pay in the ordinary course of this Agreementbusiness amounts (other than royalty or other production revenue obligations) of the Credit Parties then due and owing to unaffiliated third parties and for which the Credit Parties have issued checks or have initiated wires or ACH transfers (or will issue checks or initiate wires or ACH transfers within five (5) Business Days) in order to make such payments, the Liquidating Trust agrees that (iv) any cash set aside and used solely for a period ending on the later of three months following the Merger Closing Date payroll or employee benefits or for the payment of taxes of the Credit Parties, (v) any cash of the Credit Parties constituting purchase price deposits set aside and held in escrow by an unaffiliated third party pursuant to a binding and enforceable purchase and sale agreement with an unaffiliated third party containing customary provisions regarding the payment and refunding of such deposits, (vi) any cash set aside to pay the purchase price for any acquisition of any Property permitted hereunder by the Borrower or any direct or indirect Restricted Subsidiary pursuant to a binding and enforceable purchase and sale agreement with an unaffiliated third party, to be used within five (5) Business Days after such time so long as any matters related to the Post-Merger Adjustments are pending, the Liquidating Trust agrees that it will maintain Excess Cash Balances (as herein definedA) of not less than $5,000,000. In addition to the obligations of the Liquidating Trust under the preceding sentence, the Liquidating Trust agrees that for such cash is held in a period ending (deposit account subject to Section 4.1) on the earlier of (i) the final settlement, dismissal, resolution or judgment with respect to the lawsuit filed by Child Abuse Prevention and Volunteer Center against the Corporation (the "CAP Lawsuit") or (ii) the date upon which the Liquidating Trust obtains a loss mitigation insurance policy with respect to the CAP Lawsuit, with a coverage amount of at least $10,000,000 and on terms substantially similar to those obtained by the Corporation in its loss mitigation insurance policy, issued on or about the date hereof, with respect to the Commerce Job Journal lawsuit against the Corporation (if any such date occurs, the "CAP Insurance Date"), the Liquidating Trust agrees that it will maintain Excess Cash Balances of not less than $10,000,000, it being agreed that the Excess Cash Balance requirement set forth in the first sentence of this Section 5.7 and the Excess Cash Balance requirement set forth in the second sentence of this Section 5.7 shall be mutually exclusive and independent of each other. Notwithstanding the foregoing, the Liquidating Trust shall be under no obligation to obtain any such insurance with respect to the CAP Lawsuit. For this purpose, the "Excess Cash Balance" of the Liquidating Trust shall mean the cash and cash equivalents (it being agreed that cash equivalents shall include, without limitation, the amounts due to the Liquidating Trust under the Promissory Note Secured by Deed of Trust made by FGP Control Agreement in favor of the Liquidating Trust as set forth Administrative Agent and (B) the Borrower has provided written notice of the intended use of such funds to the Administrative Agent and (vii) Excluded Senior Notes Proceeds) (such excess amount, the “Excess Cash”), then the Borrower shall prepay the Borrowings on Schedule A heretothe next Business Day in an amount equal to the lesser of (A) held by the Liquidating Trust in excess of the amount of cash and cash equivalents that the Liquidating Trust is holding to satisfy its other claims, expenses, charges, liabilities and obligations (including contingent or unliquidated claims). At the Merger Closing Date and from time to time thereafter during the pendency of the Liquidating Trust's obligations under this Section 5.7, upon the reasonable request of FGP, the Trustee shall provide to FGP a certification, in form and substance reasonably satisfactory to FGP, setting forth the Excess Cash Balances and (B) the amount of Borrowings then outstanding; provided that to the extent that any Excess Cash results from the receipt of the Liquidating Trust and proceeds of any sale or disposition of Property less than five (5) Business Days prior to such date, then the basis Borrower shall not be required to prepay such Excess Cash until the fifth (5th) Business Day following the receipt of such calculationproceeds. Each prepayment of Borrowings pursuant to this Section 3.04(e) shall be applied as directed by the Borrower, provided that if the Borrower does not provide instructions for the application of such prepayment, such prepayment shall be applied, first, ratably to any ABR Borrowings then outstanding, and, second, to any Eurodollar Borrowings then outstanding, and if more than one Eurodollar Borrowing is then outstanding, to each such Eurodollar Borrowing in order of priority beginning with the Eurodollar Borrowing with the least number of days remaining in the Interest Period applicable thereto and ending with the Eurodollar Borrowing with the most number of days remaining in the Interest Period applicable thereto. Each prepayment of Borrowings pursuant to this Section 3.04(e) shall be applied ratably to the Loans included in the prepaid Borrowings. Prepayments pursuant to this Section 3.04(e) shall be accompanied by accrued interest to the extent required by Section 3.02.

Excess Cash Balances. In furtherance of, and without limitingIf at any time while any Revolving Credit Exposure is outstanding, the obligations Loan Parties have any cash or cash equivalents (other than Cash Collateral) in an aggregate amount in excess of ten percent (10%) of the Liquidating Trust to FGP under Section 5.4 of this Agreement, the Liquidating Trust agrees that for a period ending on the later of three months following the Merger Closing Date or for so long as any matters related to the Post-Merger Adjustments are pending, the Liquidating Trust agrees that it will maintain Excess Cash Balances Aggregate Elected Commitment Amounts (as herein defined) of not less other than $5,000,000. In addition to the obligations of the Liquidating Trust under the preceding sentence, the Liquidating Trust agrees that for a period ending (subject to Section 4.1) on the earlier of (i) cash of the final settlementLoan Parties to be used by any Loan Party to Redeem Other Debt pursuant to Section 9.04(b) pursuant to a binding and enforceable commitment to Redeem such Other Debt within ten (10) Business Days; provided that cash excluded pursuant to this clause (i) shall not be excluded for more than ten (10) consecutive Business Days at any time, dismissal, resolution or judgment with respect to the lawsuit filed by Child Abuse Prevention and Volunteer Center against the Corporation (the "CAP Lawsuit") or (ii) cash of the Loan Parties constituting proceeds of Permitted Second Lien Debt to be used by any Loan Party to Redeem Other Debt pursuant to Section 9.04(b)(iv) which cash is held by or under the control of a third party agent (whether in escrow or otherwise) for the sole purpose of redeeming such Other Debt pursuant to Section 9.04(b)(iv) or Section 9.04(b)(v) pursuant to a binding and enforceable commitment to Redeem such Other Debt within ten (10) Business Days after the issuance of such Permitted Second Lien Debt; provided that cash excluded pursuant to this clause (ii) shall not be excluded for more than ten (10) Business Days from the date upon which of such issuance of Permitted Second Lien Debt, (iii) cash of the Liquidating Trust obtains Loan Parties constituting purchase price deposits held in escrow by an unaffiliated third party pursuant to a loss mitigation insurance policy binding and enforceable purchase and sale agreement with respect an unaffiliated third party containing customary provisions regarding the payment and refunding of such deposits and (iv) cash of the Loan Parties to be used by any Loan Party within five (5) Business Days to pay the CAP Lawsuitpurchase price for Property to be acquired by such Loan Party pursuant to a binding and enforceable purchase and sale agreement with an unaffiliated third party containing customary provisions regarding the payment of such purchase price; provided, with a coverage amount of that cash excluded pursuant to this clause (iv) shall not be excluded for more than five (5) consecutive Business Days at least $10,000,000 and on terms substantially similar to those obtained by the Corporation in its loss mitigation insurance policy, issued on or about the date hereof, with respect to the Commerce Job Journal lawsuit against the Corporation any time) (if any such date occursexcess, the "CAP Insurance Date"“Excess Cash”), the Liquidating Trust agrees Borrower shall, to the extent that it will maintain the Loan Parties have any Excess Cash, no later than the end of the day on the fifth (5th) Business Day, (i) prepay the Borrowings in an amount equal to such Excess Cash Balances of not less than $10,000,000, it being agreed that the and (ii) if any Excess Cash Balance requirement set forth in remains after prepaying all of such Borrowings and there is any LC Exposure, pay to the first sentence Administrative Agent on behalf of this Section 5.7 and the Lenders an amount equal to the lesser of (A) such remaining Excess Cash Balance requirement set forth in the second sentence of this Section 5.7 shall be mutually exclusive and independent of each other. Notwithstanding the foregoing, the Liquidating Trust shall be under no obligation to obtain any such insurance with respect to the CAP Lawsuit. For this purpose, the "Excess Cash Balance" of the Liquidating Trust shall mean the cash and cash equivalents (it being agreed that cash equivalents shall include, without limitation, the amounts due to the Liquidating Trust under the Promissory Note Secured by Deed of Trust made by FGP in favor of the Liquidating Trust as set forth on Schedule A heretoB) held by the Liquidating Trust in excess of the amount of cash and cash equivalents that the Liquidating Trust is holding to satisfy its other claimsLC Exposure, expenses, charges, liabilities and obligations (including contingent or unliquidated claimswhich amount shall be held as Cash Collateral as provided in Section 2.08(j). At the Merger Closing Date and from time Each prepayment of Borrowings pursuant to time thereafter during the pendency of the Liquidating Trust's obligations under this Section 5.73.04(e) shall be applied, upon first, ratably to any ABR Borrowings then outstanding, and, second, to any Eurodollar Borrowings then outstanding, and if more than one Eurodollar Borrowing is then outstanding, to each such Eurodollar Borrowing in order of priority beginning with the reasonable request Eurodollar Borrowing with the least number of FGP, days remaining in the Trustee Interest Period applicable thereto and ending with the Eurodollar Borrowing with the most number of days remaining in the Interest Period applicable thereto. Each prepayment of Borrowings SM Energy Company Sixth Amended and Restated Credit Agreement pursuant to this Section 3.04(e) shall provide be applied ratably to FGP a certification, in form and substance reasonably satisfactory the Loans that are being prepaid by such Excess Cash. Prepayments pursuant to FGP, setting forth this Section 3.04(e) shall be accompanied by accrued interest to the Excess Cash Balances of the Liquidating Trust and the basis of such calculationextent required by Section 3.02.

Excess Cash Balances. In furtherance of, and without limitingIf on the last Business Day of any week while there are any Borrowings outstanding, the Borrower or any other Credit Party have any cash or cash equivalents in excess of $50,000,000 in the aggregate (other than, without duplication, (i) cash collateral with respect to Letters of Credit, (ii) any cash set aside and to be used to pay royalty or other production revenue obligations of the Liquidating Trust Credit Parties for amounts which have accrued to FGP under Section 5.4 unaffiliated third parties, (iii) any cash set aside to and to be used to pay in the ordinary course of this Agreementbusiness amounts (other than royalty or other production revenue obligations) of the Credit Parties then due and owing to unaffiliated third parties and for which the Credit Parties have issued checks or have initiated wires or ACH transfers (or will issue checks or initiate wires or ACH transfers within five (5) Business Days) in order to make such payments, (iv) any cash set aside and used solely for payroll or employee benefits or for the Liquidating Trust agrees that for payment of taxes of the Credit Parties and (v) any cash of the Credit Parties constituting purchase price deposits set aside and held in escrow by an unaffiliated third party pursuant to a period ending binding and enforceable purchase and sale agreement with an unaffiliated third party containing customary provisions regarding the payment and refunding of such deposits) (the “Excess Cash”), then the Borrower shall prepay the Borrowings on the later of three months following the Merger Closing Date or for so long as any matters related next Business Day in an amount equal to the Post-Merger Adjustments are pending, the Liquidating Trust agrees that it will maintain Excess Cash Balances (as herein defined) of not less than $5,000,000. In addition to the obligations of the Liquidating Trust under the preceding sentence, the Liquidating Trust agrees that for a period ending (subject to Section 4.1) on the earlier lesser of (iA) the final settlement, dismissal, resolution or judgment with respect to the lawsuit filed by Child Abuse Prevention and Volunteer Center against the Corporation (the "CAP Lawsuit") or (ii) the date upon which the Liquidating Trust obtains a loss mitigation insurance policy with respect to the CAP Lawsuit, with a coverage amount of at least $10,000,000 and on terms substantially similar to those obtained by the Corporation in its loss mitigation insurance policy, issued on or about the date hereof, with respect to the Commerce Job Journal lawsuit against the Corporation (if any such date occurs, the "CAP Insurance Date"), the Liquidating Trust agrees that it will maintain Excess Cash Balances of not less than $10,000,000, it being agreed that the Excess Cash Balance requirement set forth in the first sentence of this Section 5.7 and the Excess Cash Balance requirement set forth in the second sentence of this Section 5.7 shall be mutually exclusive and independent of each other. Notwithstanding the foregoing, the Liquidating Trust shall be under no obligation to obtain any such insurance with respect to the CAP Lawsuit. For this purpose, the "Excess Cash Balance" of the Liquidating Trust shall mean the cash and cash equivalents (it being agreed that cash equivalents shall include, without limitation, the amounts due to the Liquidating Trust under the Promissory Note Secured by Deed of Trust made by FGP in favor of the Liquidating Trust as set forth on Schedule A heretoB) held by the Liquidating Trust in excess of the amount of cash and cash equivalents Borrowings then outstanding; provided that to the Liquidating Trust is holding to satisfy its other claims, expenses, charges, liabilities and obligations (including contingent or unliquidated claims). At extent that any Excess Cash results from the Merger Closing Date and from time to time thereafter during the pendency receipt of the Liquidating Trust's obligations under proceeds of any sale or disposition of Property less than five (5) Business Days prior to such date, then the Borrower shall not be required to prepay such Excess Cash until the fifth (5th) Business Day following the receipt of such proceeds. Each prepayment of Borrowings pursuant to this Section 5.73.04(e) shall be applied as directed by the Borrower, upon provided that if the reasonable request of FGP, Borrower does not provide instructions for the Trustee shall provide to FGP a certification, in form and substance reasonably satisfactory to FGP, setting forth the Excess Cash Balances of the Liquidating Trust and the basis application of such calculationprepayment, such prepayment shall be applied, first, ratably to any ABR Borrowings then outstanding, and, second, to any Eurodollar Borrowings then outstanding, and if more than one Eurodollar Borrowing is then outstanding, to each such Eurodollar Borrowing in order of priority beginning with the Eurodollar Borrowing with the least number of days remaining in the Interest Period applicable thereto and ending with the Eurodollar Borrowing with the most number of days remaining in the Interest Period applicable thereto. Each prepayment of Borrowings pursuant to this Section 3.04(e) shall be applied ratably to the Loans included in the prepaid Borrowings. Prepayments pursuant to this Section 3.04(e) shall be accompanied by accrued interest to the extent required by Section 3.02.

Excess Cash Balances. In furtherance of, and without limitingIf on the last Business Day of any week while there are any Borrowings outstanding, the Borrower or any other Credit Party have any cash or cash equivalents in excess of $50,000,000 in the aggregate (other than, without duplication, (i) cash collateral with respect to Letters of Credit, (ii) any cash set aside and to be used to pay royalty or other production revenue obligations of the Liquidating Trust Credit Parties for amounts which have accrued to FGP under Section 5.4 unaffiliated third parties, (iii) any cash set aside to and to be used to pay in the ordinary course of this Agreementbusiness amounts (other than royalty or other production revenue obligations) of the Credit Parties then due and owing to unaffiliated third parties and for which the Credit Parties have issued checks or have initiated wires or ACH transfers (or will issue checks or initiate wires or ACH transfers within five (5) Business Days) in order to make such payments, the Liquidating Trust agrees that (iv) any cash set aside and used solely for a period ending on the later of three months following the Merger Closing Date payroll or employee benefits or for the payment of taxes of the Credit Parties, (v) any cash of the Credit Parties constituting purchase price deposits set aside and held in escrow by an unaffiliated third party pursuant to a binding and enforceable purchase and sale agreement with an unaffiliated third party containing customary provisions regarding the payment and refunding of such deposits, (vi) any cash set aside to pay the purchase price for any acquisition of any Property permitted hereunder by the Borrower or any direct or indirect Restricted Subsidiary pursuant to a binding and enforceable purchase and sale agreement with an unaffiliated third party, to be used within five (5) Business Days after such time so long as any matters related to the Post-Merger Adjustments are pending, the Liquidating Trust agrees that it will maintain Excess Cash Balances (as herein definedA) of not less than $5,000,000. In addition to the obligations of the Liquidating Trust under the preceding sentence, the Liquidating Trust agrees that for such cash is held in a period ending (deposit account subject to Section 4.1) on the earlier of (i) the final settlement, dismissal, resolution or judgment with respect to the lawsuit filed by Child Abuse Prevention and Volunteer Center against the Corporation (the "CAP Lawsuit") or (ii) the date upon which the Liquidating Trust obtains a loss mitigation insurance policy with respect to the CAP Lawsuit, with a coverage amount of at least $10,000,000 and on terms substantially similar to those obtained by the Corporation in its loss mitigation insurance policy, issued on or about the date hereof, with respect to the Commerce Job Journal lawsuit against the Corporation (if any such date occurs, the "CAP Insurance Date"), the Liquidating Trust agrees that it will maintain Excess Cash Balances of not less than $10,000,000, it being agreed that the Excess Cash Balance requirement set forth in the first sentence of this Section 5.7 and the Excess Cash Balance requirement set forth in the second sentence of this Section 5.7 shall be mutually exclusive and independent of each other. Notwithstanding the foregoing, the Liquidating Trust shall be under no obligation to obtain any such insurance with respect to the CAP Lawsuit. For this purpose, the "Excess Cash Balance" of the Liquidating Trust shall mean the cash and cash equivalents (it being agreed that cash equivalents shall include, without limitation, the amounts due to the Liquidating Trust under the Promissory Note Secured by Deed of Trust made by FGP Control Agreement in favor of the Liquidating Trust as set forth Administrative Agent and (B) the Borrower has provided written notice of the intended use of such funds to the Administrative Agent and (vii) Excluded Senior Notes Proceeds) (such excess amount, the “Excess Cash”), then the Borrower shall prepay the Borrowings on Schedule A heretothe next Business Day in an amount equal to the lesser of (A) held by the Liquidating Trust in excess of the amount of cash and cash equivalents that the Liquidating Trust is holding to satisfy its other claims, expenses, charges, liabilities and obligations (including contingent or unliquidated claims). At the Merger Closing Date and from time to time thereafter during the pendency of the Liquidating Trust's obligations under this Section 5.7, upon the reasonable request of FGP, the Trustee shall provide to FGP a certification, in form and substance reasonably satisfactory to FGP, setting forth the Excess Cash Balances and (B) the amount of Borrowings then outstanding; provided that to the extent that any Excess Cash results from the receipt of the Liquidating Trust and proceeds of any sale or disposition of Property less than five (5) Business Days prior to such date, then the basis Borrower shall not be required to prepay such Excess Cash until the fifth (5th) Business Day following the receipt of such calculation.proceeds. Each prepayment of Borrowings pursuant to this Section 3.04(e) shall be applied as directed by the Borrower, provided that if the Borrower does not provide instructions for the application of such prepayment, such prepayment shall be applied, first, ratably to any ABR Borrowings then outstanding, and, second, to any Eurodollar Borrowings then outstanding, and if more than one Eurodollar Borrowing is then outstanding, to each such Eurodollar Borrowing in order of priority beginning with the Eurodollar Borrowing with the least number of days remaining in the Interest Period applicable thereto and ending with the Eurodollar Borrowing with the most number of days remaining in the Interest Period applicable thereto. Each prepayment of Borrowings pursuant to this Section 3.04(e) shall be applied ratably to the Loans included in the prepaid Borrowings. Prepayments pursuant to this Section 3.04(e) shall be accompanied by accrued interest to the extent required by Section 3.02

Excess Cash Balances. In furtherance of, and without limitingIf on the last Business Day of any week while there are any Borrowings outstanding, the Borrower or any other Credit Party have any cash or cash equivalents in excess of $50,000,000 in the aggregate (other than, without duplication, (i) cash collateral with respect to Letters of Credit, (ii) any cash set aside and to be used to pay royalty or other production revenue obligations of the Liquidating Trust Credit Parties for amounts which have accrued to FGP under Section 5.4 unaffiliated third parties, (iii) any cash set aside to and to be used to pay in the ordinary course of this Agreementbusiness amounts (other than royalty or other production revenue obligations) of the Credit Parties then due and owing to unaffiliated third parties and for which the Credit Parties have issued checks or have initiated wires or ACH transfers (or will issue checks or initiate wires or ACH transfers within five (5) Business Days) in order to make such payments, the Liquidating Trust agrees that (iv) any cash set aside and used solely for a period ending on the later of three months following the Merger Closing Date payroll or employee benefits or for the payment of taxes of the Credit Parties, (v) any cash of the Credit Parties constituting purchase price deposits set aside and held in escrow by an unaffiliated third party pursuant to a binding and enforceable purchase and sale agreement with an unaffiliated third party containing customary provisions regarding the payment and refunding of such deposits and (vi) any cash set aside to pay the purchase price for any acquisition of any Property permitted hereunder by the Borrower or any Restricted Subsidiary pursuant to a binding and enforceable purchase and sale agreement with an unaffiliated third party, to be used within five (5) Business Days after such time so long as any matters related to the Post-Merger Adjustments are pending, the Liquidating Trust agrees that it will maintain Excess Cash Balances (as herein definedA) of not less than $5,000,000. In addition to the obligations of the Liquidating Trust under the preceding sentence, the Liquidating Trust agrees that for such cash is held in a period ending (deposit account subject to Section 4.1) on the earlier of (i) the final settlement, dismissal, resolution or judgment with respect to the lawsuit filed by Child Abuse Prevention and Volunteer Center against the Corporation (the "CAP Lawsuit") or (ii) the date upon which the Liquidating Trust obtains a loss mitigation insurance policy with respect to the CAP Lawsuit, with a coverage amount of at least $10,000,000 and on terms substantially similar to those obtained by the Corporation in its loss mitigation insurance policy, issued on or about the date hereof, with respect to the Commerce Job Journal lawsuit against the Corporation (if any such date occurs, the "CAP Insurance Date"), the Liquidating Trust agrees that it will maintain Excess Cash Balances of not less than $10,000,000, it being agreed that the Excess Cash Balance requirement set forth in the first sentence of this Section 5.7 and the Excess Cash Balance requirement set forth in the second sentence of this Section 5.7 shall be mutually exclusive and independent of each other. Notwithstanding the foregoing, the Liquidating Trust shall be under no obligation to obtain any such insurance with respect to the CAP Lawsuit. For this purpose, the "Excess Cash Balance" of the Liquidating Trust shall mean the cash and cash equivalents (it being agreed that cash equivalents shall include, without limitation, the amounts due to the Liquidating Trust under the Promissory Note Secured by Deed of Trust made by FGP Control Agreement in favor of the Liquidating Trust as set forth Administrative Agent and (B) the Borrower has provided written notice of the intended use of such funds to the Administrative Agent in accordance with 6.02(f) such amount, the “Excess Cash”), then the Borrower shall prepay the Borrowings on Schedule A heretothe next Business Day in an amount equal to the lesser of (A) held by the Liquidating Trust in excess of the amount of cash and cash equivalents that the Liquidating Trust is holding to satisfy its other claims, expenses, charges, liabilities and obligations (including contingent or unliquidated claims). At the Merger Closing Date and from time to time thereafter during the pendency of the Liquidating Trust's obligations under this Section 5.7, upon the reasonable request of FGP, the Trustee shall provide to FGP a certification, in form and substance reasonably satisfactory to FGP, setting forth the Excess Cash Balances and (B) the amount of Borrowings then outstanding; provided that to the extent that any Excess Cash results from the receipt of the Liquidating Trust and proceeds of any sale or disposition of Property less than five (5) Business Days prior to such date, then the basis Borrower shall not be required to prepay such Excess Cash until the fifth (5th) Business Day following the receipt of such calculationproceeds. Each prepayment of Borrowings pursuant to this Section 3.04(e) shall be applied as directed by the Borrower, provided that if the Borrower does not provide instructions for the application of such prepayment, such prepayment shall be applied, first, ratably to any ABR Borrowings then outstanding, and, second, to any Eurodollar Borrowings then outstanding, and if more than one Eurodollar Borrowing is then outstanding, to each such Eurodollar Borrowing in order of priority beginning with the Eurodollar Borrowing with the least number of days remaining in the Interest Period applicable thereto and ending with the Eurodollar Borrowing with the most number of days remaining in the Interest Period applicable thereto. Each prepayment of Borrowings pursuant to this Section 3.04(e) shall be applied ratably to the Loans included in the prepaid Borrowings. Prepayments pursuant to this Section 3.04(e) shall be accompanied by accrued interest to the extent required by Section 3.02.