Insurance and Condemnation Proceeds. (a) The Borrower may apply any Insurance Proceeds and Condemnation Proceeds in amounts less than or equal to one million Dollars ($1,000,000) arising from any one claim or any series of claims relating to the same occurrence directly for the replacement or repair of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate; provided, that the Borrower delivers to the Administrative Agent, no fewer than three (3) Business Days in advance of any such application, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate. (b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall: (i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer with respect to such Casualty Event or Event of Taking that is based upon, and accompanied by, each of the following: (A) a description of the nature and extent of such Casualty Event or Event of Taking, as the case may be; (B) a bona fide assessment (from a contractor reasonably acceptable to the Independent Engineer) of the estimated cost and time needed to restore or replace the Project to substantially the same value and general performance capability as prior to such event; (C) reasonably satisfactory evidence that such Insurance Proceeds or Condemnation Proceeds, as the case may be, are sufficient to make the necessary restorations or replacements; (D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders); (E) the Casualty Event or Event of Taking, as the case may be (including the non operation of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Project Documents (or, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such termination could not reasonably be expected to result in a Material Adverse Effect, within sixty (60) days thereof)); (F) after taking into consideration the availability of such Insurance Proceeds or Condemnation Proceeds, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for the purpose of covering such costs, there will be adequate amounts available to pay all ongoing expenses including Debt Service during the period of repair or restoration; (G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements for the repair, rebuilding or restoration on terms and conditions reasonably acceptable to the Administrative Agent; and (H) a confirmation by the Independent Engineer of its agreement with the matters set forth in clauses (A) through (G) above and its approval of such Restoration or Replacement Plan; or (ii) if (A) the Borrower does not deliver such Restoration or Replacement Plan and the accompanying deliveries referred to in Section 8.01(b)(i) within such sixty (60) day period or (B) after the completion of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower shall on the next succeeding Quarterly Payment Date thereafter, transfer to the Administrative Agent, for the account of the Lenders, an amount equal to such Insurance Proceeds or Condemnation Proceeds, as the case may be, for mandatory prepayment of the Loans in accordance with Section 3.08 (
Appears in 2 contracts
Samples: Credit Agreement (Renewable Energy Group, Inc.), Credit Agreement (Renewable Energy Group, Inc.)
Insurance and Condemnation Proceeds. (a) The Borrower may apply directs (and, if applicable, shall cause its Restricted Subsidiaries to direct) all insurers under policies of property damage, boiler and machinery and business interruption insurance and payors of any Insurance Proceeds and Condemnation Proceeds in amounts less than or equal to one million Dollars ($1,000,000) arising from any one condemnation claim or any series of claims award relating to the same occurrence directly for the replacement property to pay all proceeds payable under such policies or repair of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate; provided, that the Borrower delivers to the Administrative Agent, no fewer than three (3) Business Days in advance of any such application, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer with respect to such Casualty Event claim or Event of Taking that is based upon, and accompanied by, each of the following:
(A) a description of the nature and extent of such Casualty Event or Event of Taking, as the case may be;
(B) a bona fide assessment (from a contractor reasonably acceptable to the Independent Engineer) of the estimated cost and time needed to restore or replace the Project to substantially the same value and general performance capability as prior to such event;
(C) reasonably satisfactory evidence that such Insurance Proceeds or Condemnation Proceeds, as the case may be, are sufficient to make the necessary restorations or replacements;
(D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under award for any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget loss with respect to production volumethe Collateral directly to the Agent, yield and utility consumption (or other levels approved by for the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation benefit of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more Agent and the Holders of the Governmental Approvals Secured Obligations; provided, however, so long as no Designated Default shall have occurred and be continuing or Project Documents (or, in unless as a result thereof the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, in form and substance, and with a counterparty, reasonably satisfactory Borrower would be required pursuant to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (orterms of the Indenture to make an offer to holders of the Senior Subordinated Notes to purchase any of the outstanding principal thereunder, if the Agent shall remit such termination could not reasonably be expected to result in a Material Adverse Effect, within sixty (60) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds or Condemnation Proceeds, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for the purpose of covering such costs, there will be adequate amounts available to pay all ongoing expenses including Debt Service during the period of repair or restoration;
(G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable proceeds to the Administrative Agent have executed reconstruction contractsBorrower; provided, purchase orders or similar arrangements however, that for up to 180 days from the repair, rebuilding or restoration on terms and conditions reasonably acceptable to the Administrative Agent; and
(H) a confirmation by the Independent Engineer date of its agreement with the matters set forth in clauses (A) through (G) above and its approval of such Restoration or Replacement Plan; or
(ii) if (A) the Borrower does not deliver such Restoration or Replacement Plan and the accompanying deliveries referred to in Section 8.01(b)(i) within such sixty (60) day period or (B) after the completion of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may beany loss, the Borrower shall on commit such proceeds to restore, rebuild or replace the next succeeding Quarterly Payment Date thereafterproperty subject to any insurance payment or condemnation award; and, transfer provided, further, that at the end of such 180 day period the Borrower shall remit to the Administrative AgentAgent any proceeds (other than proceeds that are less than $2,500,000 in connection with any single insurable event ("Excluded Proceeds")) not committed according to the preceding proviso, for and the account Agent shall, upon receipt of such proceeds and at the Borrower's direction, either apply the same to the principal amount of the Lenders, Loans outstanding at the time of such receipt and create a corresponding reserve against Revolving Credit Availability in an amount equal to such Insurance Proceeds application (the "Decision Reserve") or Condemnation Proceedshold them as cash collateral for the Obligations. Each such policy shall contain a long-form loss-payable endorsement naming the Agent as loss payee, which endorsement shall be in form and substance acceptable to the Agent. For up to 180 days from the date of the Borrower remitting such proceeds to the Agent (the "Decision Period"), the Borrower may notify the Agent that it intends to restore, rebuild or replace the property subject to any insurance payment or condemnation award and shall, as soon as practicable thereafter, provide the case may beAgent detailed information, including a construction schedule and cost estimates. Should a Default occur at any time during the Decision Period, should the Borrower notify the Agent that it has decided not to rebuild or replace such property during the Decision Period, or should the Borrower fail to notify the Agent of the Borrower's decision during the Decision Period, then the amounts held as cash collateral pursuant to this Section 6.2(G) or as the Decision Reserve shall upon the Required Lenders' direction be applied as a Designated Prepayment of the Obligations pursuant to Section 2.5(B). Proceeds held as cash collateral pursuant to this Section 6.2(G) or constituting the Decision Reserve shall be disbursed as payments for restoration, rebuilding or replacement of such property become due; provided, however, should a Default occur after the Borrower has notified the Agent that it intends to rebuild or replace the property, the Decision Reserve or amounts held as cash collateral may, or shall, upon the Required Lenders' direction, be applied as a Designated Prepayment of the Obligations pursuant to Section 2.5(B). In the event the Decision Reserve is to be applied as a mandatory prepayment to the Obligations, the Borrower shall be deemed to have requested Revolving Loans in an amount equal to the Decision Reserve, and such Loans shall be made regardless of any failure of the Borrower to meet the conditions precedent set forth in Article IV. Upon completion of the restoration, rebuilding or replacement of such property, the unused proceeds shall constitute Net Cash Proceeds of an Asset Sale and shall be applied as a Designated Prepayment of the Term Loans in accordance with pursuant to Section 3.08 (2.5(B).
Appears in 2 contracts
Samples: Credit Agreement (Gfsi Inc), Credit Agreement (Gfsi Inc)
Insurance and Condemnation Proceeds. (a) The All Net Insurance and Condemnation Proceeds received by the Borrower or a Guarantor in an amount equal to or less than $2,500,000 from a single incident shall be paid to the Borrower or Guarantor, as applicable, who may apply any use such Net Proceeds in such manner as they may determine.
(b) All Net Insurance Proceeds and Condemnation Proceeds in amounts less than excess of $2,500,000 from a single incident shall be deposited with the Administrative Agent and applied at the direction of the Administrative Agent in accordance with the provisions of this Section 6.11. Within sixty (60) days from receipt of the Net Insurance and Condemnation Proceeds (or equal to one million Dollars ($1,000,000) arising from any one claim or any series of claims relating such later date as may be acceptable to the same occurrence directly for the replacement or repair of damaged assets to which such Insurance Proceeds or Condemnation ProceedsAdministrative Agent), as the case may be, relate; provided, that the either:
(i) The Borrower delivers shall deliver to the Administrative Agent, no fewer than three (3) Business Days in advance of any such application, an Insurance form and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered substance reasonably satisfactory to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer with respect to such Casualty Event or Event of Taking that is based upon, and accompanied by, each of the followingAgent:
(A) a description an executed construction contract for repair, reconstruction or replacement of the nature and extent of such Casualty Event affected Mortgaged Property at a guaranteed maximum price or Event of Taking, stipulated sum or as otherwise reasonably approved by the case may beAdministrative Agent;
(B) a bona fide assessment (from a contractor reasonably acceptable completion guaranty by Sunrise Senior Living, Inc. or payment and performance bonds satisfactory to the Independent Engineer) of the estimated cost and time needed to restore or replace the Project to substantially the same value and general performance capability as prior to such eventAdministrative Agent;
(C) reasonably satisfactory evidence that such Insurance Proceeds or Condemnation Proceeds, as insurance during the case may be, are sufficient to make the necessary restorations or replacements;construction period; and
(D) a certificate cash deposit or an irrevocable letter of a Financial Officer of credit in an amount at least equal to the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periodsexcess, if any, required of the funds necessary for payment of amounts due under any Project Document; (2) all Governmental Approvals necessary to perform the construction contract and for related architectural services, site work have been obtained (or are reasonably expected to be obtained without undue delay)and fixtures, furniture and equipment, over the Net Insurance and Condemnation Proceeds; and (3) the Project once repaired/restored will continue thereafter promptly proceed to perform at the levels set forth in the then-current Operating Budget with respect to production volumerepair, yield reconstruct and utility consumption (or other levels approved by the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation replace such portion of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected affected Mortgaged Property, including all fixtures, furniture and equipment and effects, to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Project Documents (or, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, in form and substanceits original condition insofar as possible, and with a counterparty, reasonably satisfactory to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such termination could not reasonably be expected to result in a Material Adverse Effect, within sixty (60) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds or Condemnation Proceeds, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for the purpose of covering such costs, there will be adequate amounts available to pay all ongoing expenses including Debt Service during the period of repair or restoration;
(G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements shall disburse the Net Insurance and Condemnation Proceeds in accordance with its standard requisition procedures for the repair, rebuilding or restoration on terms and conditions reasonably acceptable to the Administrative Agent; and
(H) a confirmation by the Independent Engineer of its agreement with the matters set forth in clauses (A) through (G) above and its approval of such Restoration or Replacement Planconstruction loans; or
(ii) if If the items described in paragraph (b)(i) are not delivered within the required time period, on the next Business Day (A) the Borrower does not deliver such Restoration or Replacement Plan Administrative Agent will apply all Net Insurance and Condemnation Proceeds as a prepayment of the accompanying deliveries referred Loan pursuant to in Section 8.01(b)(i2.03(b) within such sixty (60) day period or and (B) the Borrower will pay to the Administrative Agent for prepayment of the Loan the difference, if any, between the amount of Net Insurance and Condemnation Proceeds applied pursuant to clause (i) and the Prepayment Price upon damage, destruction or condemnation; provided that, if the damage, destruction or condemnation affects substantially all of a Mortgaged Property, the Borrower may elect to prepay the Loan in full with respect to such Mortgaged Property, subject to the following: (A) 100% of the Net Insurance and Condemnation Proceeds, after any reasonable third-party expenses related thereto, are applied to repayment of the Loan, and (B) the Loan is repaid in an amount not less than the allocated loan amount shown on Exhibit 7.03(b).
(c) Any Net Insurance and Condemnation Proceeds remaining after the completion of such Restoration any repair, replacement or Replacement Planreconstruction undertaken pursuant to paragraph (b)(i) will be applied by the Borrower as a prepayment of the Loan pursuant to Section 2.03(b).
(d) Notwithstanding the foregoing, there are excess (i) if the amount of the Net Insurance and Condemnation Proceeds is less than $5,000,000, the Administrative Agent will work in good faith with the Borrower to agree upon abbreviated or Condemnation Proceedsstreamlined evaluation and disbursement requirements and procedures as reasonably appropriate for the circumstances of the damage, as the case may bedestruction or condemnation and (ii) with respect to any event of damage, destruction or condemnation, the Borrower shall may elect to not repair, reconstruct or replace or may elect to do so on a partial basis only (and any Net Insurance and Condemnation Proceeds which are not used for repair, reconstruction or replacement will promptly be applied as described in paragraph (c)) if the next succeeding Quarterly Payment Date thereafter, transfer Borrower furnishes to the Administrative Agent, for the account Agent a written report of the LendersManagement Company advising that (A) the affected Mortgaged Property can continue to operate effectively without any repair, an amount equal reconstruction and replacement or with less than full repair, reconstruction and replacement and (B) the Borrower is likely to such Insurance Proceeds or Condemnation Proceeds, as meet the case may be, for mandatory prepayment of covenants contained in Section 6.24 through the Loans in accordance with Section 3.08 (Maturity Date.
Appears in 2 contracts
Samples: Loan Agreement (Sunrise Senior Living Inc), Loan Agreement (Sunrise Senior Living Inc)
Insurance and Condemnation Proceeds. (a) The Borrower may apply Borrowers direct all ----------------------------------- insurers under policies of property damage, boiler and machinery and business interruption insurance and payors of any Insurance Proceeds and Condemnation Proceeds in amounts less than or equal to one million Dollars ($1,000,000) arising from any one condemnation claim or any series of claims award relating to the same occurrence directly for the replacement property to pay all proceeds payable under such policies or repair of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate; provided, that the Borrower delivers to the Administrative Agent, no fewer than three (3) Business Days in advance of any such application, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer with respect to such Casualty Event claim or Event of Taking that is based upon, and accompanied by, each of the following:
(A) a description of the nature and extent of such Casualty Event or Event of Taking, as the case may be;
(B) a bona fide assessment (from a contractor reasonably acceptable to the Independent Engineer) of the estimated cost and time needed to restore or replace the Project to substantially the same value and general performance capability as prior to such event;
(C) reasonably satisfactory evidence that such Insurance Proceeds or Condemnation Proceeds, as the case may be, are sufficient to make the necessary restorations or replacements;
(D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under award for any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget loss with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Project Documents (or, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, in form and substance, and with a counterparty, reasonably satisfactory Collateral directly to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such termination could not reasonably be expected to result in a Material Adverse Effect, within sixty (60) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds or Condemnation Proceeds, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for the purpose of covering such costs, there will be adequate amounts available to pay all ongoing expenses including Debt Service during the period of repair or restoration;
(G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements for the repair, rebuilding or restoration on terms and conditions reasonably acceptable to the Administrative Agent; and
(H) a confirmation by the Independent Engineer of its agreement with the matters set forth in clauses (A) through (G) above and its approval of such Restoration or Replacement Plan; or
(ii) if (A) the Borrower does not deliver such Restoration or Replacement Plan and the accompanying deliveries referred to in Section 8.01(b)(i) within such sixty (60) day period or (B) after the completion of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower shall on the next succeeding Quarterly Payment Date thereafter, transfer to the Administrative Agent, for the account benefit of the LendersAgent and the Holders of the Secured Obligations; provided, however, in the event that such proceeds or award are -------- ------- less than $250,000 ("EXCLUDED PROCEEDS"), unless a Default shall have occurred and be continuing, the Agent shall remit such Excluded Proceeds to the Borrowers. Each such policy shall contain a long-form loss-payable endorsement naming the Agent as loss payee, which endorsement shall be in form and substance acceptable to the Agent. The Agent shall, upon receipt of such proceeds (other than Excluded Proceeds) and at the Borrowers' direction, either apply the same to the principal amount of the Loans outstanding at the time of such receipt and create a corresponding reserve against Revolving Credit Availability in an amount equal to such Insurance Proceeds application (the "DECISION RESERVE") or Condemnation Proceedshold them as cash collateral for the Obligations. For up to 180 days from the date of any loss (the "DECISION PERIOD"), the Borrowers may notify the Agent that they intend to restore, rebuild or replace the property subject to any insurance payment or condemnation award and shall, as soon as practicable thereafter, provide the case may beAgent detailed information, including a construction schedule and cost estimates. Should a Default occur at any time during the Decision Period, should the Borrowers notify the Agent that they have decided not to rebuild or replace such property during the Decision Period, or should the Borrowers fail to notify the Agent of the Borrowers' decision during the Decision Period, then the amounts held as cash collateral pursuant to this Section 6.2(G) or as the -------------- Decision Reserve shall upon the Required Lenders' direction be applied as a Designated Prepayment of the Term Loans pursuant to Section 2.5. Proceeds held ----------- as cash collateral pursuant to this Section 6.2(G) or constituting the Decision -------------- Reserve shall be disbursed as payments for restoration, rebuilding or replacement of such property become due; provided, however, should a Default --------- ------- occur after the Borrowers have notified the Agent that they intend to rebuild or replace the property, the Decision Reserve or amounts held as cash collateral may, or shall, upon the Required Lenders' direction, be applied as a Designated Prepayment of the Term Loans pursuant to Section 2.5. In the event the Decision ----------- Reserve is to be applied as a mandatory prepayment to the Term Loans, the Borrowers shall be deemed to have requested Revolving Loans in an amount equal to the Decision Reserve, and such Loans shall be made regardless of any failure of the Borrowers to meet the conditions precedent set forth in Article IV. Upon ---------- completion of the restoration, rebuilding or replacement of such property, the unused proceeds shall constitute Net Cash Proceeds of an Asset Sale and shall be applied as a Designated Prepayment of the Term Loans in accordance with pursuant to Section 3.08 (2.5. -----------
Appears in 1 contract
Insurance and Condemnation Proceeds. No later than one hundred eighty (a180) The days following the date of receipt by the Borrower may apply or any of its Restricted Subsidiaries of any Net Cash Proceeds under any of the property hazard insurance policies maintained by the Borrower or any of its Subsidiaries or from any condemnation proceeding (the “Insurance Proceeds and Condemnation Proceeds”) which have not been previously reinvested (whether before or after the receipt of such Net Cash Proceeds) as of such date in similar replacement assets, the Borrower shall make mandatory principal prepayments of the Loans and/or Cash Collateralize the L/C Obligations in the manner set forth in Section 4.4(b)(vvi) below in amounts equal to one hundred percent (100%) of the aggregate amount of such Insurance and Condemnation Proceeds in amounts less than or equal to one million Dollars (excess of $1,000,000) arising from any one claim 2,000,000 received by the Borrower or any series of claims relating its Restricted Subsidiaries with respect to each occurrence for which Insurance and Condemnation Proceeds are received. Notwithstanding any of the foregoing to the same occurrence directly for contrary, upon and during the replacement or repair continuance of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate; provided, that the Borrower delivers to an Event of Default and upon notice from the Administrative Agent, no fewer than an amount equal to all Insurance and Condemnation Proceeds received by the Borrower or its Restricted Subsidiaries shall be applied to make prepayments of the Loans and/or Cash Collateralize the L/C Obligations, such prepayments and/or Cash Collateral to be made within three (3) Business Days in advance after the Borrower’s or such Restricted Subsidiary’s receipt of any all such application, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer with respect to such Casualty Event or Event of Taking that is based upon, and accompanied by, each of the following:
(A) a description of the nature and extent of such Casualty Event or Event of Taking, as the case may be;
(B) a bona fide assessment (from a contractor reasonably acceptable to the Independent Engineer) of the estimated cost and time needed to restore or replace the Project to substantially the same value and general performance capability as prior to such event;
(C) reasonably satisfactory evidence that such Insurance Proceeds or Condemnation Proceeds, as the case may be, are sufficient to make the necessary restorations or replacements;
(D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Project Documents (or, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such termination could not reasonably be expected to result in a Material Adverse Effect, within sixty (60) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds or Condemnation Proceeds, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for the purpose of covering such costs, there will be adequate amounts available to pay all ongoing expenses including Debt Service during the period of repair or restoration;
(G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements for the repair, rebuilding or restoration on terms and conditions reasonably acceptable to the Administrative Agent; and
(H) a confirmation by the Independent Engineer of its agreement with the matters set forth in clauses (A) through (G) above and its approval of such Restoration or Replacement Plan; or
(ii) if (A) the Borrower does not deliver such Restoration or Replacement Plan and the accompanying deliveries referred to in Section 8.01(b)(i) within such sixty (60) day period or (B) after the completion of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower shall on the next succeeding Quarterly Payment Date thereafter, transfer to the Administrative Agent, for the account of the Lenders, an amount equal to such Insurance Proceeds or Condemnation Proceeds, as the case may be, for mandatory prepayment of the Loans in accordance with Section 3.08 (
Appears in 1 contract
Insurance and Condemnation Proceeds. No later than one hundred eighty (a180) The days following the date of receipt by the Borrower may apply or any of its Restricted Subsidiaries of any Net Cash Proceeds under any of the insurance policies maintained pursuant to Section 9.3 or from any condemnation proceeding (the “Insurance Proceeds and Condemnation Proceeds”) which have not been reinvested as of such date in replacement assets, the Borrower shall make mandatory principal prepayments of the Loans in the manner set forth in Section 4.4(b)(vi) below in amounts equal to one hundred percent (100%) of the aggregate amount of such Insurance and Condemnation Proceeds received by the Borrower or any of its Restricted Subsidiaries unless such Insurance and Condemnation Proceeds have been committed to be reinvested within such one hundred eighty (180) day period and are thereafter actually reinvested within two hundred seventy (270) days after receipt of such Insurance and Condemnation Proceeds. If such Insurance and Condemnation Proceeds are not actually reinvested in amounts less than or accordance with the terms of this Section 4.4(b)(iv) by the date which is two hundred seventy (270) days after the receipt thereof, the Borrower shall make a mandatory prepayment in an amount equal to one million Dollars ($1,000,000) arising from such Insurance and Condemnation Proceeds as described above on such date. Notwithstanding any one claim or any series of claims relating the foregoing to the same occurrence directly for contrary, upon and during the replacement or repair continuance of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate; provided, that the Borrower delivers to an Event of Default and upon notice from the Administrative Agent, no fewer than all Insurance and Condemnation Proceeds received by the Borrower and its Restricted Subsidiaries shall be applied to make prepayments of the Loans, such prepayments to be made within three (3) Business Days in advance after the Borrower’s receipt of any such application, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer with respect to such Casualty Event or Event of Taking that is based upon, and accompanied by, each of the following:
(A) a description of the nature and extent of such Casualty Event or Event of Taking, as the case may be;
(B) a bona fide assessment (from a contractor reasonably acceptable to the Independent Engineer) of the estimated cost and time needed to restore or replace the Project to substantially the same value and general performance capability as prior to such event;
(C) reasonably satisfactory evidence that such Insurance Proceeds or Condemnation Proceeds, as the case may be, are sufficient to make the necessary restorations or replacements;
(D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Project Documents (or, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such termination could not reasonably be expected to result in a Material Adverse Effect, within sixty (60) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds or Condemnation Proceeds, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for the purpose of covering such costs, there will be adequate amounts available to pay all ongoing expenses including Debt Service during the period of repair or restoration;
(G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements for the repair, rebuilding or restoration on terms and conditions reasonably acceptable to the Administrative Agent; and
(H) a confirmation by the Independent Engineer of its agreement with the matters set forth in clauses (A) through (G) above and its approval of such Restoration or Replacement Plan; or
(ii) if (A) the Borrower does not deliver such Restoration or Replacement Plan and the accompanying deliveries referred to in Section 8.01(b)(i) within such sixty (60) day period or (B) after the completion of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower shall on the next succeeding Quarterly Payment Date thereafter, transfer to the Administrative Agent, for the account of the Lenders, an amount equal to such Insurance Proceeds or Condemnation Proceeds, as the case may be, for mandatory prepayment of the Loans in accordance with Section 3.08 (
Appears in 1 contract
Insurance and Condemnation Proceeds. (a) The Borrower may apply Borrowers or the Parent, as applicable, having directed, or having caused Subsidiaries of the Parent whose property or interests in property comprise part of the Collateral, if applicable, to direct all insurers under policies of Property damage, boiler and machinery and business interruption insurance and payors of any Insurance Proceeds and Condemnation Proceeds in amounts less than or equal to one million Dollars ($1,000,000) arising from any one condemnation claim or any series of claims award relating to the same occurrence directly for the replacement Property to pay all proceeds payable under such policies or repair of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate; provided, that the Borrower delivers to the Administrative Agent, no fewer than three (3) Business Days in advance of any such application, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer with respect to such Casualty Event claim or award directly to the Agent, for the benefit of the Holders, the Borrowers and Parent hereby agree that, in no case shall such proceeds be payable to any Borrower(s) and the Agent or to any Guarantor and the Agent. Parent and the Borrowers shall maintain or cause the maintenance of the directions to its insurers to make such payments of insurance proceeds to the Agent as aforesaid until the Obligations are paid in full, in cash, and shall cause such insurers to issue loss payable endorsements in the form delivered as required by Section 6.01(a) or such other form as the Agent shall determine to be acceptable from time to time. The Agent shall, upon receipt of such proceeds, apply all of the proceeds so received in repayment of the Obligations in the manner set forth in Section 4.01(b)(vi)(A). Notwithstanding the foregoing, in the event proceeds of insurance or condemnation claims or awards received by the Agent under property damage, boiler and machinery policies or business interruption insurance policies (i) is less than $500,000, Agent shall, upon receipt of such proceeds and provided that no Event of Taking that is based uponDefault or Potential Event of Default shall have occurred and continue unwaived, and accompanied byremit the amount so received to a Borrower or a Guarantor, each of the following:
as applicable or (Aii) a description of the nature and extent constitutes Replacement Proceeds, Agent shall, upon receipt of such Casualty Event or proceeds and provided that no Event of TakingDefault or Potential Event of Default shall have occurred and continue unwaived, hold the amount so received as Cash Collateral for the Obligations, subject to a Borrower's or a Guarantor's, as the case may be;
(B) a bona fide assessment (applicable, right to withdraw amounts from a contractor reasonably acceptable such Cash Collateral upon its request therefor to the Independent Engineer) of the estimated cost and time needed to restore restore, rebuild or replace the Project to substantially the same value and general performance capability as prior Property subject to such event;
(C) reasonably satisfactory evidence that such Insurance Proceeds insurance payment or Condemnation Proceeds, as condemnation award. Notwithstanding the case may be, are sufficient to make the necessary restorations or replacements;
(D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Project Documents (orforegoing, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, insurance payment or condemnation award in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (oran amount greater than $1,000,000, if such termination could not reasonably be expected to result in (i) the Agent receives notice from a Material Adverse Effect, within sixty (60) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds Borrower that it or Condemnation Proceedsa Guarantor, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for does not intend to restore, rebuild or replace the purpose Property subject to such insurance payment or condemnation award, (ii) the applicable Borrower or Guarantor fails to replace or commence the restoration or rebuilding of covering such costsProperty within six (6) months after the Agent's receipt of the proceeds of such insurance payment or condemnation award, there will be adequate amounts available to pay all ongoing expenses including Debt Service during or (iii) upon completion of the period of repair or restoration;
(G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements for the repair, rebuilding or restoration on terms and conditions reasonably acceptable to replacement of such Property, the Administrative Agent; and
unused proceeds from such insurance payment or condemnation award exceed $500,000, then (Hx) a confirmation by upon the Independent Engineer occurrence of its agreement with either of the matters set forth events described in clauses (Ai) through (G) above and its approval of such Restoration or Replacement Plan; or
(ii) if above, all such proceeds, and (Ay) upon the occurrence of either of the events described in clause (iii) above, such excess, shall constitute Net Cash Proceeds of Sale received by a Borrower does not deliver such Restoration or Replacement Plan a Guarantor and the accompanying deliveries referred to in Section 8.01(b)(i) within such sixty (60) day period or (B) after the completion of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower shall on the next succeeding Quarterly Payment Date thereafter, transfer be applied to the Administrative Agent, for Obligations pursuant to the account terms of the Lenders, an amount equal to such Insurance Proceeds or Condemnation Proceeds, as the case may be, for mandatory prepayment of the Loans in accordance with Section 3.08 (4.01(b).
Appears in 1 contract
Insurance and Condemnation Proceeds. No later than one hundred eighty (a180) The days following the date of receipt by the Borrower may apply or any of its Restricted Subsidiaries of any Net Cash Proceeds under any of the insurance policies maintained pursuant to Section 9.3 or from any condemnation proceeding (the "INSURANCE AND CONDEMNATION PROCEEDS") which have not been reinvested as of such date in similar replacement assets, the Borrower shall make mandatory principal prepayments of the Term Loans in the manner set forth in Section 4.4(b)(vii) below in amounts equal to one hundred percent (100%) of the aggregate amount of such Insurance Proceeds and Condemnation Proceeds received by the Borrower or any of its Restricted Subsidiaries unless such Insurance and Condemnation Proceeds have been committed to be reinvested within such one hundred eighty (180) day period and are thereafter actually reinvested within two hundred seventy (270) days after receipt of such Insurance and Condemnation Proceeds. If such Insurance and Condemnation Proceeds are not actually reinvested in amounts less than or accordance with the terms of this Section 4.4(b)(iv) by the date which is two hundred seventy (270) days after the receipt thereof, the Borrower shall make a mandatory prepayment in an amount equal to one million Dollars ($1,000,000) arising from such Insurance and Condemnation Proceeds as described above on such date. Notwithstanding any one claim or any series of claims relating the foregoing to the same occurrence directly for contrary, upon and during the replacement or repair continuance of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate; provided, that the Borrower delivers to an Event of Default and upon notice from the Administrative Agent, no fewer than all Insurance and Condemnation Proceeds, received by the Borrower and its Restricted Subsidiaries shall be applied to make prepayments of the Term Loans, such prepayments to be made within three (3) Business Days in advance after the Borrower's receipt of any such application, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer with respect to such Casualty Event or Event of Taking that is based upon, and accompanied by, each of the following:
(A) a description of the nature and extent of such Casualty Event or Event of Taking, as the case may be;
(B) a bona fide assessment (from a contractor reasonably acceptable to the Independent Engineer) of the estimated cost and time needed to restore or replace the Project to substantially the same value and general performance capability as prior to such event;
(C) reasonably satisfactory evidence that such Insurance Proceeds or Condemnation Proceeds, as the case may be, are sufficient to make the necessary restorations or replacements;
(D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Project Documents (or, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such termination could not reasonably be expected to result in a Material Adverse Effect, within sixty (60) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds or Condemnation Proceeds, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for the purpose of covering such costs, there will be adequate amounts available to pay all ongoing expenses including Debt Service during the period of repair or restoration;
(G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements for the repair, rebuilding or restoration on terms and conditions reasonably acceptable to the Administrative Agent; and
(H) a confirmation by the Independent Engineer of its agreement with the matters set forth in clauses (A) through (G) above and its approval of such Restoration or Replacement Plan; or
(ii) if (A) the Borrower does not deliver such Restoration or Replacement Plan and the accompanying deliveries referred to in Section 8.01(b)(i) within such sixty (60) day period or (B) after the completion of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower shall on the next succeeding Quarterly Payment Date thereafter, transfer to the Administrative Agent, for the account of the Lenders, an amount equal to such Insurance Proceeds or Condemnation Proceeds, as the case may be, for mandatory prepayment of the Loans in accordance with Section 3.08 (
Appears in 1 contract
Insurance and Condemnation Proceeds. No later than the fifth ----------------------------------- (a5/th/) The Borrower may apply Business Day following the date of receipt by Company or any of its Subsidiaries of any cash payments under any insurance policy as a result of any damage to or loss of all or any portion of the Collateral or any other tangible asset (net of actual costs incurred and any taxes paid or payable by Company or any of its Subsidiaries in connection with adjustment and settlement thereof, "Insurance Proceeds") or any proceeds resulting from the taking of ------------------ assets by the power of eminent domain, condemnation or otherwise (net of actual costs incurred and any taxes paid or payable by Company or any of its Subsidiaries in connection with adjustment and settlement thereof, "Condemnation Proceeds") (any such event resulting in the recovery of Insurance Proceeds and or Condemnation Proceeds Proceeds, a "Recovery Event"), Company shall prepay the Loans -------------- (and/or the Revolving Loan Commitments shall be reduced) in amounts less than or an amount equal to one million Dollars ($1,000,000) arising from any one claim or any series of claims relating to the same occurrence directly for the replacement or repair of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relatereceived; provided, that the Borrower delivers to the Administrative Agentthat, no fewer than three (3) Business Days in advance of any such application, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower if Company -------- shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate have delivered a Reinvestment Notice to the Administrative Agent ifno later than five (5) Business Days prior to the consummation of such Recovery Event and no Event of Default exists at the time of such consummation and the time of delivery of such notice, Company shall not be required to make any prepayment (and/or reduction in the Revolving Loan Commitments) with the proceeds of such Recovery Event to the extent that (x) all or any portion of such proceeds are reinvested (or a contract has been entered into to reinvest) in Reinvestment Assets within three hundred sixty five (60365) days after from the occurrence date of the Casualty Event or Event receipt of Taking giving rise to such proceeds, and (y) after giving effect thereto, the Borrower delivers aggregate amount of proceeds not used to make mandatory prepayments of Loans (and/or reduce the Revolving Loan Commitments) pursuant to this proviso does not exceed $7,500,000 during any Fiscal Year; provided, further, that, on each Reinvestment Prepayment Date, -------- ------- an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to prepay the Loans (and/or the Revolving Loan Commitments shall be reduced). In addition, in the event that Company shall, at any time after receipt of proceeds of any Reinvestment Event requiring a Restoration or Replacement Plan prepayment (and/or reduction in the Revolving Loan Commitments) pursuant to this subsection 2.4B(iii)(d), determine that the prepayments (and/or reduction in the Revolving Loan Commitments) previously made in respect of such Reinvestment Event were in an aggregate amount less than that required by the terms of this subsection 2.4B(iii)(d), Company shall promptly cause to be made an additional prepayment of the Loans (and/or reduce the Revolving Loan Commitments) in an amount equal to the amount of any such deficit, and Company shall concurrently therewith deliver to the Administrative Agent and an Officer's Certificate demonstrating the Independent Engineer with respect to such Casualty Event or Event of Taking that is based upon, and accompanied by, each derivation of the following:
(A) a description of the nature and extent of additional proceeds resulting in such Casualty Event or Event of Taking, as the case may be;
(B) a bona fide assessment (from a contractor reasonably acceptable to the Independent Engineer) of the estimated cost and time needed to restore or replace the Project to substantially the same value and general performance capability as prior to such event;
(C) reasonably satisfactory evidence that such Insurance Proceeds or Condemnation Proceeds, as the case may be, are sufficient to make the necessary restorations or replacements;
(D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Project Documents (or, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such termination could not reasonably be expected to result in a Material Adverse Effect, within sixty (60) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds or Condemnation Proceeds, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for the purpose of covering such costs, there will be adequate amounts available to pay all ongoing expenses including Debt Service during the period of repair or restoration;
(G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements for the repair, rebuilding or restoration on terms and conditions reasonably acceptable to the Administrative Agent; and
(H) a confirmation by the Independent Engineer of its agreement with the matters set forth in clauses (A) through (G) above and its approval of such Restoration or Replacement Plan; or
(ii) if (A) the Borrower does not deliver such Restoration or Replacement Plan and the accompanying deliveries referred to in Section 8.01(b)(i) within such sixty (60) day period or (B) after the completion of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower shall on the next succeeding Quarterly Payment Date thereafter, transfer to the Administrative Agent, for the account of the Lenders, an amount equal to such Insurance Proceeds or Condemnation Proceeds, as the case may be, for mandatory prepayment of the Loans in accordance with Section 3.08 (deficit.
Appears in 1 contract
Samples: Credit Agreement (Microclock Inc)
Insurance and Condemnation Proceeds. No later than one hundred eighty (a180) The days following the date of receipt by the Borrower may apply or any of its Restricted Subsidiaries of any Net Cash Proceeds under any of the insurance policies maintained by the Borrower or any of its Subsidiaries or from any condemnation proceeding (the "Insurance Proceeds and Condemnation Proceeds") which have not been previously reinvested (whether before or after the receipt of such Net Cash Proceeds) as of such date in similar replacement assets, the Borrower shall make mandatory principal prepayments of the Term Loans in the manner set forth in Section 4.4(b)(vii) below in amounts equal to one hundred percent (100%) of the aggregate amount of such Insurance and Condemnation Proceeds in amounts less than or equal to one million Dollars (excess of $1,000,000) arising from any one claim 100,000 received by the Borrower or any series of claims relating its Restricted Subsidiaries with respect to each occurrence for which Insurance and Condemnation Proceeds are received. Notwithstanding any of the foregoing to the same occurrence directly for contrary, upon and during the replacement or repair continuance of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate; provided, that the Borrower delivers to an Event of Default and upon notice from the Administrative Agent, no fewer than all Insurance and Condemnation Proceeds received by the Borrower or its Restricted Subsidiaries shall be applied to make prepayments of the Term Loans, such prepayments to be made within three (3) Business Days in advance after the Borrower's or such Restricted Subsidiary's receipt of any such application, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer with respect to such Casualty Event or Event of Taking that is based upon, and accompanied by, each of the following:
(A) a description of the nature and extent of such Casualty Event or Event of Taking, as the case may be;
(B) a bona fide assessment (from a contractor reasonably acceptable to the Independent Engineer) of the estimated cost and time needed to restore or replace the Project to substantially the same value and general performance capability as prior to such event;
(C) reasonably satisfactory evidence that such Insurance Proceeds or Condemnation Proceeds, as the case may be, are sufficient to make the necessary restorations or replacements;
(D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Project Documents (or, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such termination could not reasonably be expected to result in a Material Adverse Effect, within sixty (60) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds or Condemnation Proceeds, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for the purpose of covering such costs, there will be adequate amounts available to pay all ongoing expenses including Debt Service during the period of repair or restoration;
(G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements for the repair, rebuilding or restoration on terms and conditions reasonably acceptable to the Administrative Agent; and
(H) a confirmation by the Independent Engineer of its agreement with the matters set forth in clauses (A) through (G) above and its approval of such Restoration or Replacement Plan; or
(ii) if (A) the Borrower does not deliver such Restoration or Replacement Plan and the accompanying deliveries referred to in Section 8.01(b)(i) within such sixty (60) day period or (B) after the completion of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower shall on the next succeeding Quarterly Payment Date thereafter, transfer to the Administrative Agent, for the account of the Lenders, an amount equal to such Insurance Proceeds or Condemnation Proceeds, as the case may be, for mandatory prepayment of the Loans in accordance with Section 3.08 (
Appears in 1 contract
Insurance and Condemnation Proceeds. No later than one hundred eighty (a180) The days following the date of receipt by the Borrower may apply or any of its Restricted Subsidiaries of any Net Cash Proceeds under any of the property hazard insurance policies maintained by the Borrower or any of its Subsidiaries or from any condemnation proceeding (the “Insurance Proceeds and Condemnation Proceeds”) which have not been previously reinvested (whether before or after the receipt of such Net Cash Proceeds) as of such date in similar replacement assets, the Borrower shall make mandatory principal prepayments of the Loans and/or cash collateralize the L/C Obligations in the manner set forth in Section 4.4(b)(v) below in amounts equal to one hundred percent (100%) of the aggregate amount of such Insurance and Condemnation Proceeds in amounts less than or equal to one million Dollars (excess of $1,000,000) arising from any one claim 2,000,000 received by the Borrower or any series of claims relating its Restricted Subsidiaries with respect to each occurrence for which Insurance and Condemnation Proceeds are received. Notwithstanding any of the foregoing to the same occurrence directly for contrary, upon and during the replacement or repair continuance of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate; provided, that the Borrower delivers to an Event of Default and upon notice from the Administrative Agent, no fewer than all Insurance and Condemnation Proceeds received by the Borrower or its Restricted Subsidiaries shall be applied to make prepayments of the Loans and/or Cash Collateralize the L/C Obligations, such prepayments and/or Cash Collateral to be made within three (3) Business Days in advance after the Borrower’s or such Restricted Subsidiary’s receipt of any all such application, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer with respect to such Casualty Event or Event of Taking that is based upon, and accompanied by, each of the following:
(A) a description of the nature and extent of such Casualty Event or Event of Taking, as the case may be;
(B) a bona fide assessment (from a contractor reasonably acceptable to the Independent Engineer) of the estimated cost and time needed to restore or replace the Project to substantially the same value and general performance capability as prior to such event;
(C) reasonably satisfactory evidence that such Insurance Proceeds or Condemnation Proceeds, as the case may be, are sufficient to make the necessary restorations or replacements;
(D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Project Documents (or, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such termination could not reasonably be expected to result in a Material Adverse Effect, within sixty (60) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds or Condemnation Proceeds, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for the purpose of covering such costs, there will be adequate amounts available to pay all ongoing expenses including Debt Service during the period of repair or restoration;
(G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements for the repair, rebuilding or restoration on terms and conditions reasonably acceptable to the Administrative Agent; and
(H) a confirmation by the Independent Engineer of its agreement with the matters set forth in clauses (A) through (G) above and its approval of such Restoration or Replacement Plan; or
(ii) if (A) the Borrower does not deliver such Restoration or Replacement Plan and the accompanying deliveries referred to in Section 8.01(b)(i) within such sixty (60) day period or (B) after the completion of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower shall on the next succeeding Quarterly Payment Date thereafter, transfer to the Administrative Agent, for the account of the Lenders, an amount equal to such Insurance Proceeds or Condemnation Proceeds, as the case may be, for mandatory prepayment of the Loans in accordance with Section 3.08 (
Appears in 1 contract
Insurance and Condemnation Proceeds. No later than one hundred eighty (a180) The days following the date of receipt by the Borrower may apply or any of its Restricted Subsidiaries of any Net Cash Proceeds under any of the insurance policies maintained pursuant to Section 9.3 or from any condemnation proceeding (the "INSURANCE AND CONDEMNATION PROCEEDS") which have not been reinvested as of such date in similar replacement assets, the Borrower shall make mandatory principal prepayments of the Loans in the manner set forth in Section 4.4(b)(vi) below in amounts equal to one hundred percent (100%) of the aggregate amount of such Insurance Proceeds and Condemnation Proceeds received by the Borrower or any of its Restricted Subsidiaries unless such Insurance and Condemnation Proceeds have been committed to be reinvested within such one hundred eighty (180) day period and are thereafter actually reinvested within two hundred seventy (270) days after receipt of such Insurance and Condemnation Proceeds. If such Insurance and Condemnation Proceeds are not actually reinvested in amounts less than or accordance with the terms of this Section 4.4(b)(iv) by the date which is two hundred seventy (270) days after the receipt thereof, the Borrower shall make a mandatory prepayment in an amount equal to one million Dollars ($1,000,000) arising from such Insurance and Condemnation Proceeds as described above on such date. Notwithstanding any one claim or any series of claims relating the foregoing to the same occurrence directly for contrary, upon and during the replacement or repair continuance of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate; provided, that the Borrower delivers to an Event of Default and upon notice from the Administrative Agent, no fewer than all Insurance and Condemnation Proceeds received by the Borrower and its Restricted Subsidiaries shall be applied to make prepayments of the Loans, such prepayments to be made within three (3) Business Days in advance after the Borrower's receipt of any such application, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer with respect to such Casualty Event or Event of Taking that is based upon, and accompanied by, each of the following:
(A) a description of the nature and extent of such Casualty Event or Event of Taking, as the case may be;
(B) a bona fide assessment (from a contractor reasonably acceptable to the Independent Engineer) of the estimated cost and time needed to restore or replace the Project to substantially the same value and general performance capability as prior to such event;
(C) reasonably satisfactory evidence that such Insurance Proceeds or Condemnation Proceeds, as the case may be, are sufficient to make the necessary restorations or replacements;
(D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Project Documents (or, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such termination could not reasonably be expected to result in a Material Adverse Effect, within sixty (60) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds or Condemnation Proceeds, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for the purpose of covering such costs, there will be adequate amounts available to pay all ongoing expenses including Debt Service during the period of repair or restoration;
(G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements for the repair, rebuilding or restoration on terms and conditions reasonably acceptable to the Administrative Agent; and
(H) a confirmation by the Independent Engineer of its agreement with the matters set forth in clauses (A) through (G) above and its approval of such Restoration or Replacement Plan; or
(ii) if (A) the Borrower does not deliver such Restoration or Replacement Plan and the accompanying deliveries referred to in Section 8.01(b)(i) within such sixty (60) day period or (B) after the completion of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower shall on the next succeeding Quarterly Payment Date thereafter, transfer to the Administrative Agent, for the account of the Lenders, an amount equal to such Insurance Proceeds or Condemnation Proceeds, as the case may be, for mandatory prepayment of the Loans in accordance with Section 3.08 (
Appears in 1 contract
Insurance and Condemnation Proceeds. No later than one hundred eighty (a180) The days following the date of receipt by the Borrower may apply or any of its Restricted Subsidiaries of any Net Cash Proceeds under any of the property hazard insurance policies maintained by the Borrower or any of its Subsidiaries or from any condemnation proceeding (the “Insurance Proceeds and Condemnation Proceeds”) which have not been previously reinvested (whether before or after the receipt of such Net Cash Proceeds) as of such date in similar replacement assets, the Borrower shall make mandatory principal prepayments of the Loans and/or Cash Collateralize the L/C Obligations in the manner set forth in Section 4.4(b)(v) below in amounts equal to one hundred percent (100%) of the aggregate amount of such Insurance and Condemnation Proceeds in amounts less than or equal to one million Dollars (excess of $1,000,000) arising from any one claim 2,000,000 received by the Borrower or any series of claims relating its Restricted Subsidiaries with respect to each occurrence for which Insurance and Condemnation Proceeds are received. Notwithstanding any of the foregoing to the same occurrence directly for contrary, upon and during the replacement or repair continuance of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate; provided, that the Borrower delivers to an Event of Default and upon notice from the Administrative Agent, no fewer than all Insurance and Condemnation Proceeds received by the Borrower or its Restricted Subsidiaries shall be applied to make prepayments of the Loans and/or Cash Collateralize the L/C Obligations, such prepayments and/or Cash Collateral to be made within three (3) Business Days in advance after the Borrower’s or such Restricted Subsidiary’s receipt of any all such application, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer with respect to such Casualty Event or Event of Taking that is based upon, and accompanied by, each of the following:
(A) a description of the nature and extent of such Casualty Event or Event of Taking, as the case may be;
(B) a bona fide assessment (from a contractor reasonably acceptable to the Independent Engineer) of the estimated cost and time needed to restore or replace the Project to substantially the same value and general performance capability as prior to such event;
(C) reasonably satisfactory evidence that such Insurance Proceeds or Condemnation Proceeds, as the case may be, are sufficient to make the necessary restorations or replacements;
(D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Project Documents (or, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such termination could not reasonably be expected to result in a Material Adverse Effect, within sixty (60) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds or Condemnation Proceeds, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for the purpose of covering such costs, there will be adequate amounts available to pay all ongoing expenses including Debt Service during the period of repair or restoration;
(G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements for the repair, rebuilding or restoration on terms and conditions reasonably acceptable to the Administrative Agent; and
(H) a confirmation by the Independent Engineer of its agreement with the matters set forth in clauses (A) through (G) above and its approval of such Restoration or Replacement Plan; or
(ii) if (A) the Borrower does not deliver such Restoration or Replacement Plan and the accompanying deliveries referred to in Section 8.01(b)(i) within such sixty (60) day period or (B) after the completion of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower shall on the next succeeding Quarterly Payment Date thereafter, transfer to the Administrative Agent, for the account of the Lenders, an amount equal to such Insurance Proceeds or Condemnation Proceeds, as the case may be, for mandatory prepayment of the Loans in accordance with Section 3.08 (
Appears in 1 contract
Insurance and Condemnation Proceeds. (a) The Borrower may apply or the Parent, as applicable, having directed, or having caused Subsidiaries of the Parent whose property or interests in property comprise part of the Collateral, if applicable, to direct all insurers under policies of Property damage, boiler and machinery and business interruption insurance and payors of any Insurance Proceeds and Condemnation Proceeds in amounts less than or equal to one million Dollars ($1,000,000) arising from any one condemnation claim or any series of claims award relating to the same occurrence directly for the replacement Property to pay all proceeds payable under such policies or repair of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate; provided, that the Borrower delivers to the Administrative Agent, no fewer than three (3) Business Days in advance of any such application, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer with respect to such Casualty Event 106 claim or award directly to the Agent, for the benefit of the Holders, the Borrower and Parent hereby agree that, in no case shall such proceeds be payable to the Borrower AND the Agent or to any Guarantor AND the Agent. The Agent shall, upon receipt of such proceeds, apply all of the proceeds so received in repayment of the Obligations in the manner set forth in SECTION 4.01(b)(vii)(B). Notwithstanding the foregoing, in the event proceeds of insurance or condemnation claims or awards received by the Agent under property damage, boiler and machinery policies or business interruption insurance policies (i) is less than $500,000, Agent shall, upon receipt of such proceeds and PROVIDED THAT no Event of Taking that is based uponDefault or Potential Event of Default shall have occurred and continue unwaived, and accompanied byremit the amount so received to the Borrower or a Guarantor, each of the following:
as applicable or (Aii) a description of the nature and extent constitutes Replacement Proceeds, Agent shall, upon receipt of such Casualty Event or proceeds and PROVIDED THAT no Event of TakingDefault or Potential Event of Default shall have occurred and continue unwaived, hold the amount so received as Cash Collateral for the Obligations, subject to the Borrower's or a Guarantor's, as the case may be;
(B) a bona fide assessment (applicable, right to withdraw amounts from a contractor reasonably acceptable such Cash Collateral upon its request therefor to the Independent Engineer) of the estimated cost and time needed to restore restore, rebuild or replace the Project to substantially the same value and general performance capability as prior Property subject to such event;
(C) reasonably satisfactory evidence that such Insurance Proceeds insurance payment or Condemnation Proceeds, as condemnation award. Notwithstanding the case may be, are sufficient to make the necessary restorations or replacements;
(D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Project Documents (orforegoing, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, insurance payment or condemnation award in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (oran amount greater than $1,000,000, if such termination could not reasonably be expected to result in (i) the Agent receives notice from the Borrower that it or a Material Adverse Effect, within sixty (60) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds or Condemnation ProceedsGuarantor, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for does not intend to restore, rebuild or replace the purpose Property subject to such insurance payment or condemnation award, (ii) the Borrower or the applicable Guarantor fails to replace or commence the restoration or rebuilding of covering such costsProperty within six months after the Agent's receipt of the proceeds of such insurance payment or condemnation award, there will be adequate amounts available to pay all ongoing expenses including Debt Service during or (iii) upon completion of the period of repair or restoration;
(G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements for the repair, rebuilding or restoration on terms and conditions reasonably acceptable to the Administrative Agent; and
(H) a confirmation by the Independent Engineer of its agreement with the matters set forth in clauses (A) through (G) above and its approval replacement of such Restoration Property, the unused proceeds from such insurance payment or Replacement Plan; or
condemnation award exceed $500,000, then (x) upon the occurrence of either of the events described in CLAUSES (i) or (ii) if above, all such proceeds, and (Ay) upon the occurrence of either of the events described in CLAUSE (iii) above, such excess, shall constitute Net Cash Proceeds of Sale received by the Borrower does not deliver such Restoration or Replacement Plan a Guarantor and the accompanying deliveries referred to in Section 8.01(b)(i) within such sixty (60) day period or (B) after the completion of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower shall on the next succeeding Quarterly Payment Date thereafter, transfer be applied to the Administrative Agent, for Obligations pursuant to the account terms of the Lenders, an amount equal to such Insurance Proceeds or Condemnation Proceeds, as the case may be, for mandatory prepayment of the Loans in accordance with Section 3.08 (SECTION 4.01(b).
Appears in 1 contract
Samples: Credit Agreement (Aviation Sales Co)
Insurance and Condemnation Proceeds. No later than one hundred eighty (a180) The days following the date of receipt by the Borrower may apply or any of its Restricted Subsidiaries of any Net Cash Proceeds under any of the insurance policies maintained pursuant to Section 9.3 or from any condemnation proceeding (the "Insurance Proceeds and Condemnation Proceeds") which have not been reinvested as of such date in similar replacement assets, the Borrower shall make mandatory principal prepayments of the Term Loans in the manner set forth in Section 4.4(b)(vii) below in amounts equal to one hundred percent (100%) of the aggregate amount of such Insurance and Condemnation Proceeds received by the Borrower or any of its Restricted Subsidiaries unless such Insurance and Condemnation Proceeds have been committed to be reinvested within such one hundred eighty (180) day period and are thereafter actually reinvested within two hundred seventy (270) days after receipt of such Insurance and Condemnation Proceeds. If such Insurance and Condemnation Proceeds are not actually reinvested in amounts less than or accordance with the terms of this Section 4.4(b)(iv) by the date which is two hundred seventy (270) days after the receipt thereof, the Borrower shall make a mandatory prepayment in an amount equal to one million Dollars ($1,000,000) arising from such Insurance and Condemnation Proceeds as described above on such date. Notwithstanding any one claim or any series of claims relating the foregoing to the same occurrence directly for contrary, upon and during the replacement or repair continuance of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate; provided, that the Borrower delivers to an Event of Default and upon notice from the Administrative Agent, no fewer than all Insurance and Condemnation Proceeds received by the Borrower and its Restricted Subsidiaries shall be applied to make prepayments of the Term Loans, such prepayments to be made within three (3) Business Days in advance after the Borrower's receipt of any such application, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer with respect to such Casualty Event or Event of Taking that is based upon, and accompanied by, each of the following:
(A) a description of the nature and extent of such Casualty Event or Event of Taking, as the case may be;
(B) a bona fide assessment (from a contractor reasonably acceptable to the Independent Engineer) of the estimated cost and time needed to restore or replace the Project to substantially the same value and general performance capability as prior to such event;
(C) reasonably satisfactory evidence that such Insurance Proceeds or Condemnation Proceeds, as the case may be, are sufficient to make the necessary restorations or replacements;
(D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Project Documents (or, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such termination could not reasonably be expected to result in a Material Adverse Effect, within sixty (60) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds or Condemnation Proceeds, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for the purpose of covering such costs, there will be adequate amounts available to pay all ongoing expenses including Debt Service during the period of repair or restoration;
(G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements for the repair, rebuilding or restoration on terms and conditions reasonably acceptable to the Administrative Agent; and
(H) a confirmation by the Independent Engineer of its agreement with the matters set forth in clauses (A) through (G) above and its approval of such Restoration or Replacement Plan; or
(ii) if (A) the Borrower does not deliver such Restoration or Replacement Plan and the accompanying deliveries referred to in Section 8.01(b)(i) within such sixty (60) day period or (B) after the completion of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower shall on the next succeeding Quarterly Payment Date thereafter, transfer to the Administrative Agent, for the account of the Lenders, an amount equal to such Insurance Proceeds or Condemnation Proceeds, as the case may be, for mandatory prepayment of the Loans in accordance with Section 3.08 (
Appears in 1 contract
Insurance and Condemnation Proceeds. No later than one hundred eighty (a180) The days following the date of receipt by the Borrower may apply or any of its Restricted Subsidiaries of any Net Cash Proceeds under any of the insurance policies maintained by the Borrower or any of its Subsidiaries or from any condemnation proceeding (the "Insurance Proceeds and Condemnation Proceeds") which have not been previously reinvested (whether before or after the receipt of such Net Cash Proceeds) as of such date in similar replacement assets, the Borrower shall make mandatory principal prepayments of the Term Loans in the manner set forth in Section 4.4(b)(viii) below in amounts equal to one hundred percent (100%) of the aggregate amount of such Insurance and Condemnation Proceeds in amounts less than or equal to one million Dollars (excess of $1,000,000) arising from any one claim 100,000 received by the Borrower or any series of claims relating its Restricted Subsidiaries with respect to each occurrence for which Insurance and Condemnation Proceeds are received. Notwithstanding any of the foregoing to the same occurrence directly for contrary, upon and during the replacement or repair continuance of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate; provided, that the Borrower delivers to an Event of Default and upon notice from the Administrative Agent, no fewer than all Insurance and Condemnation Proceeds received by the Borrower or its Restricted Subsidiaries shall be applied to make prepayments of the Term Loans, such prepayments to be made within three (3) Business Days in advance after the Borrower's or such Restricted Subsidiary's receipt of any such application, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer with respect to such Casualty Event or Event of Taking that is based upon, and accompanied by, each of the following:
(A) a description of the nature and extent of such Casualty Event or Event of Taking, as the case may be;
(B) a bona fide assessment (from a contractor reasonably acceptable to the Independent Engineer) of the estimated cost and time needed to restore or replace the Project to substantially the same value and general performance capability as prior to such event;
(C) reasonably satisfactory evidence that such Insurance Proceeds or Condemnation Proceeds, as the case may be, are sufficient to make the necessary restorations or replacements;
(D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Project Documents (or, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such termination could not reasonably be expected to result in a Material Adverse Effect, within sixty (60) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds or Condemnation Proceeds, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for the purpose of covering such costs, there will be adequate amounts available to pay all ongoing expenses including Debt Service during the period of repair or restoration;
(G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements for the repair, rebuilding or restoration on terms and conditions reasonably acceptable to the Administrative Agent; and
(H) a confirmation by the Independent Engineer of its agreement with the matters set forth in clauses (A) through (G) above and its approval of such Restoration or Replacement Plan; or
(ii) if (A) the Borrower does not deliver such Restoration or Replacement Plan and the accompanying deliveries referred to in Section 8.01(b)(i) within such sixty (60) day period or (B) after the completion of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower shall on the next succeeding Quarterly Payment Date thereafter, transfer to the Administrative Agent, for the account of the Lenders, an amount equal to such Insurance Proceeds or Condemnation Proceeds, as the case may be, for mandatory prepayment of the Loans in accordance with Section 3.08 (
Appears in 1 contract
Insurance and Condemnation Proceeds. The Borrower shall promptly notify the Agent and the Lenders of any loss, damage, or destruction to the Collateral, whether or not covered by insurance. The Agent is hereby authorized to collect all insurance and condemnation proceeds (other than proceeds with respect to any loss, damage or destruction of the Collateral of a Canadian Subsidiary Guarantor) in respect of Collateral directly and to apply or remit them as follows:
(a) The With respect to insurance and condemnation proceeds relating to Collateral other than Fixed Assets, after deducting from such proceeds the reasonable expenses, if any, incurred by the Agent in the collection or handling thereof, the Borrower may shall, and shall cause its Subsidiaries to, deposit such proceeds upon receipt in a cash collateral account pledged by the Borrower and its Subsidiaries for use by the Borrower or its Subsidiaries to replace such Collateral. If the Borrower or its Subsidiaries fail to use such proceeds to replace such Collateral within 120 days of deposit into the cash collateral account or if an Event of Default has occurred and is continuing, Agent shall apply such proceeds, ratably, to the reduction of the Obligations in the order provided for in Section 3.4.
(b) With respect to insurance and condemnation proceeds relating to Collateral consisting of Fixed Assets, the Agent shall permit the Borrower to use any Insurance Proceeds and Condemnation Proceeds in amounts such proceeds, or any part thereof (i) less than or equal to $100,000, in any manner not otherwise restricted hereunder and (ii) in excess of $100,000, in order to replace, repair, restore or rebuild the relevant Fixed Assets within one million Dollars hundred and eighty ($1,000,000180) arising from any one claim or any series days following receipt of claims relating to such proceeds in a diligent and expeditious manner with materials and workmanship of substantially the same occurrence directly for quality as existed before the replacement loss, damage or repair destruction, so long as, in either case, (1) no Event of damaged assets to which such Insurance Proceeds Default has occurred and is continuing, (2) the aggregate proceeds when taken together with any other insurance or Condemnation Proceeds, as the case may be, relate; provided, that condemnation proceeds received by the Borrower delivers to the Administrative Agentdo not exceed $500,000 and, no fewer than three (3) Business Days with respect to proceeds in advance excess of any such application$100,000 only, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of if the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and first (A) provides the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer Required Lenders with respect to plans and specifications for any such Casualty Event or Event of Taking that is based upon, and accompanied by, each of the following:
(A) a description of the nature and extent of such Casualty Event or Event of Taking, as the case may be;
(B) a bona fide assessment (from a contractor reasonably acceptable to the Independent Engineer) of the estimated cost and time needed to restore or replace the Project to substantially the same value and general performance capability as prior to such event;
(C) reasonably satisfactory evidence that such Insurance Proceeds or Condemnation Proceeds, as the case may be, are sufficient to make the necessary restorations or replacements;
(D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Project Documents (or, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such termination could not reasonably be expected to result in a Material Adverse Effect, within sixty (60) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds or Condemnation Proceeds, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for the purpose of covering such costs, there will be adequate amounts available to pay all ongoing expenses including Debt Service during the period of repair or restoration;
(G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements for the repair, rebuilding or restoration on terms and conditions reasonably acceptable to the Administrative Agent; and
(H) a confirmation by the Independent Engineer of its agreement with the matters set forth in clauses (A) through (G) above and its approval of such Restoration or Replacement Plan; or
(ii) if (A) the Borrower does not deliver such Restoration or Replacement Plan and the accompanying deliveries referred to in Section 8.01(b)(i) within such sixty (60) day period or (B) after the completion of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower shall on the next succeeding Quarterly Payment Date thereafter, transfer to the Administrative Agent, for the account of the Lenders, an amount equal to such Insurance Proceeds or Condemnation Proceeds, as the case may be, for mandatory prepayment of the Loans in accordance with Section 3.08 (
Appears in 1 contract
Samples: Credit Agreement (Gfsi Inc)
Insurance and Condemnation Proceeds. The Parent Guarantor ----------------------------------- hereby directs (aand, if applicable, shall cause its Subsidiaries to direct) The Borrower may apply all insurers under policies of Property damage, boiler and machinery and business interruption insurance and payors of any Insurance Proceeds and Condemnation Proceeds in amounts less than or equal to one million Dollars ($1,000,000) arising from any one condemnation claim or any series of claims award relating to the same occurrence directly for the replacement Property to pay all proceeds payable under such policies or repair of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate; provided, that the Borrower delivers to the Administrative Agent, no fewer than three (3) Business Days in advance of any such application, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer with respect to such Casualty Event claim or Event of Taking that is based uponaward directly to the Agent, and accompanied by, each for the benefit of the following:
(A) a description of Agent, the nature Issuing Banks and extent of the Lenders. In no case shall such Casualty Event or Event of Taking, as the case may be;
(B) a bona fide assessment (from a contractor reasonably acceptable proceeds be payable to the Independent Engineer) of the estimated cost and time needed to restore Parent Guarantor or replace the Project to substantially the same value and general performance capability as prior to such event;
(C) reasonably satisfactory evidence that such Insurance Proceeds or Condemnation Proceeds, as the case may be, are sufficient to make the necessary restorations or replacements;
(D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of its Subsidiaries and the Governmental Approvals Agent. In the event proceeds of insurance received by the Agent under Property damage, boiler and machinery policies, business interruption insurance policies, or Project Documents with respect to a condemnation claim or award exceed $200,000 and do not constitute Replacement Proceeds, the Agent shall, upon receipt of such proceeds, apply all of the proceeds so received in repayment of the Obligations in the manner set forth in Section 4.1(b)(vi)(B). Notwithstanding the foregoing, in the event --------------------- proceeds of insurance received by the Agent under property damage, boiler and machinery policies or business interruption insurance policies (ori) is less than $200,000 or (ii) constitutes Replacement Proceeds, the Agent shall, upon receipt of such proceeds, remit the amount so received to the Parent Guarantor or a Subsidiary of the Parent Guarantor, as applicable; provided, however, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, -------- ------- insurance payment or condemnation award in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (oran amount greater than $200,000, if such termination could not reasonably be expected to result in a Material Adverse Effect, within sixty (60i) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds Agent receives notice from the Parent Guarantor that it or Condemnation Proceedsits Subsidiary, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for does not intend to restore, rebuild or replace the purpose Property subject to such insurance payment or condemnation award, (ii) the Parent Guarantor or its applicable Subsidiary fails to replace or use its best efforts to commence the restoration or rebuilding of covering such costsProperty within 180 days after the Agent's receipt of the proceeds of such insurance payment or condemnation award, there will be adequate amounts available to pay all ongoing expenses including Debt Service during the period of repair or restoration;
(Giii) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements for the repairon, rebuilding or restoration on terms and conditions reasonably acceptable to replacement of such Property, the Administrative Agent; and
unused proceeds from such insurance payment or condemnation award exceed $200,000, or (Hiv) a confirmation by such proceeds exceed $200,000, then (x) upon the Independent Engineer occurrence of its agreement with either of the matters set forth events described in clauses (Ai) through (G) above and its approval of such Restoration or Replacement Plan; or
(ii) if above, all such proceeds, and (Ay) ----------- ---- upon the Borrower does not deliver such Restoration or Replacement Plan and occurrence of either of the accompanying deliveries referred to events described in Section 8.01(b)(iclauses (iii) within such sixty (60) day period ------------- or (Biv) after above, such excess, shall constitute Net Cash Proceeds of Sale ---- received by the completion Parent Guarantor or a Subsidiary of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower Parent Guarantor and shall on the next succeeding Quarterly Payment Date thereafter, transfer be applied to the Administrative Agent, for Obligations pursuant to the account terms of the Lenders, an amount equal to such Insurance Proceeds or Condemnation Proceeds, as the case may be, for mandatory prepayment of the Loans in accordance with Section 3.08 (4.1(b). --------------
Appears in 1 contract
Insurance and Condemnation Proceeds. (a) The Borrower may apply Borrowers or the Parent, as applicable, having directed, or having caused Subsidiaries of the Parent whose property or 103 interests in property comprise part of the Collateral, if applicable, to direct all insurers under policies of Property damage, boiler and machinery and business interruption insurance and payors of any Insurance Proceeds and Condemnation Proceeds in amounts less than or equal to one million Dollars ($1,000,000) arising from any one condemnation claim or any series of claims award relating to the same occurrence directly for the replacement Property to pay all proceeds payable under such policies or repair of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate; provided, that the Borrower delivers to the Administrative Agent, no fewer than three (3) Business Days in advance of any such application, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer with respect to such Casualty Event claim or award directly to the Agent, for the benefit of the Holders, the Borrowers and Parent hereby agree that, in no case shall such proceeds be payable to any Borrower(s) AND the Agent or to any Guarantor AND the Agent. The Agent shall, upon receipt of such proceeds, apply all of the proceeds so received in repayment of the Obligations in the manner set forth in SECTION 4.01(B)(VII)(B). Notwithstanding the foregoing, in the event proceeds of insurance or condemnation claims or awards received by the Agent under property damage, boiler and machinery policies or business interruption insurance policies (i) is less than $500,000, Agent shall, upon receipt of such proceeds and PROVIDED THAT no Event of Taking that is based uponDefault or Potential Event of Default shall have occurred and continue unwaived, and accompanied byremit the amount so received to a Borrower or a Guarantor, each of the following:
as applicable or (Aii) a description of the nature and extent constitutes Replacement Proceeds, Agent shall, upon receipt of such Casualty Event or proceeds and PROVIDED THAT no Event of TakingDefault or Potential Event of Default shall have occurred and continue unwaived, hold the amount so received as Cash Collateral for the Obligations, subject to a Borrower's or a Guarantor's, as the case may be;
(B) a bona fide assessment (applicable, right to withdraw amounts from a contractor reasonably acceptable such Cash Collateral upon its request therefor to the Independent Engineer) of the estimated cost and time needed to restore restore, rebuild or replace the Project to substantially the same value and general performance capability as prior Property subject to such event;
(C) reasonably satisfactory evidence that such Insurance Proceeds insurance payment or Condemnation Proceeds, as condemnation award. Notwithstanding the case may be, are sufficient to make the necessary restorations or replacements;
(D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Project Documents (orforegoing, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, insurance payment or condemnation award in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (oran amount greater than $1,000,000, if such termination could not reasonably be expected to result in (i) the Agent receives notice from a Material Adverse Effect, within sixty (60) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds Borrower that it or Condemnation Proceedsa Guarantor, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for does not intend to restore, rebuild or replace the purpose Property subject to such insurance payment or condemnation award, (ii) the applicable Borrower or Guarantor fails to replace or commence the restoration or rebuilding of covering such costsProperty within six months after the Agent's receipt of the proceeds of such insurance payment or condemnation award, there will be adequate amounts available to pay all ongoing expenses including Debt Service during or (iii) upon completion of the period of repair or restoration;
(G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements for the repair, rebuilding or restoration on terms replacement of such Property, the unused proceeds from such insurance payment or condemnation award exceed $500,000, then (x) upon the occurrence of either of the events described in CLAUSES (I) or (II) above, all such proceeds, and conditions reasonably acceptable (y) upon the occurrence of either of the events described in CLAUSE (III) above, such excess, shall constitute Net Cash Proceeds of Sale received by a Borrower or a Guarantor and shall be applied to the Administrative Agent; and
(H) a confirmation by the Independent Engineer of its agreement with the matters set forth in clauses (A) through (G) above and its approval of such Restoration or Replacement Plan; or
(ii) if (A) the Borrower does not deliver such Restoration or Replacement Plan and the accompanying deliveries referred to in Section 8.01(b)(i) within such sixty (60) day period or (B) after the completion of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower shall on the next succeeding Quarterly Payment Date thereafter, transfer Obligations pursuant to the Administrative Agent, for the account terms of the Lenders, an amount equal to such Insurance Proceeds or Condemnation Proceeds, as the case may be, for mandatory prepayment of the Loans in accordance with Section 3.08 (SECTION 4.01(B).
Appears in 1 contract
Samples: Credit Agreement (Aviation Sales Co)
Insurance and Condemnation Proceeds. No later than one hundred eighty (a180) The days following the date of receipt by the Borrower may apply or any of its Restricted Subsidiaries of any Net Cash Proceeds under any of the property hazard insurance policies maintained by the Borrower or any of its Subsidiaries or from any condemnation proceeding (the “Insurance Proceeds and Condemnation Proceeds”) which have not been previously reinvested (whether before or after the receipt of such Net Cash Proceeds) as of such date in similar replacement assets, the Borrower shall make mandatory principal prepayments of the Term Loan in the manner set forth in Section 4.4(b)(vii) below in amounts equal to one hundred percent (100%) of the aggregate amount of such Insurance and Condemnation Proceeds in amounts less than or equal to one million Dollars (excess of $1,000,000) arising from any one claim 1,000,000 received by the Borrower or any series of claims relating its Restricted Subsidiaries with respect to each occurrence for which Insurance and Condemnation Proceeds are received. Notwithstanding any of the foregoing to the same occurrence directly for contrary, upon and during the replacement or repair continuance of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate; provided, that the Borrower delivers to an Event of Default and upon notice from the Administrative Agent, no fewer than all Insurance and Condemnation Proceeds received by the Borrower or its Restricted Subsidiaries shall be applied to make prepayments of the Term Loan, such prepayments to be made within three (3) Business Days in advance after the Borrower’s or such Restricted Subsidiary’s receipt of any all such application, an Insurance and Condemnation Proceeds Request Certificate setting forth proposed instructions for such application. A Financial Officer of the Borrower shall certify that each Insurance and Condemnation Proceeds Request Certificate is being delivered, and the applications specified therein are being directed, in accordance with this Agreement and the other Transaction Documents, and shall also certify that the directed applications will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate.
(b) Any Insurance Proceeds and Condemnation Proceeds in amounts greater than one million Dollars ($1,000,000) but less than or equal to five million Dollars ($5,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:
(i) be applied for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds, as the case may be, relate in accordance with the Borrower’s direction in an Insurance and Condemnation Proceeds Request Certificate delivered to the Administrative Agent if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Administrative Agent and the Independent Engineer with respect to such Casualty Event or Event of Taking that is based upon, and accompanied by, each of the following:
(A) a description of the nature and extent of such Casualty Event or Event of Taking, as the case may be;
(B) a bona fide assessment (from a contractor reasonably acceptable to the Independent Engineer) of the estimated cost and time needed to restore or replace the Project to substantially the same value and general performance capability as prior to such event;
(C) reasonably satisfactory evidence that such Insurance Proceeds or Condemnation Proceeds, as the case may be, are sufficient to make the necessary restorations or replacements;
(D) a certificate of a Financial Officer of the Borrower certifying that (1) all work contemplated to be done under the Restoration or Replacement Plan can be done within the time periods, if any, required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Project once repaired/restored will continue to perform at the levels set forth in the then-current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders);
(E) the Casualty Event or Event of Taking, as the case may be (including the non operation of the Project during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Project Documents (or, in the case of a default giving rise to a termination of a Project Document, an agreement replacing such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders is entered into (together with all applicable Ancillary Documents) within forty-five (45) days thereof (or, if such termination could not reasonably be expected to result in a Material Adverse Effect, within sixty (60) days thereof));
(F) after taking into consideration the availability of such Insurance Proceeds or Condemnation Proceeds, as applicable, and Business Interruption Insurance Proceeds and any additional documented voluntary equity contributions for the purpose of covering such costs, there will be adequate amounts available to pay all ongoing expenses including Debt Service during the period of repair or restoration;
(G) construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Administrative Agent have executed reconstruction contracts, purchase orders or similar arrangements for the repair, rebuilding or restoration on terms and conditions reasonably acceptable to the Administrative Agent; and
(H) a confirmation by the Independent Engineer of its agreement with the matters set forth in clauses (A) through (G) above and its approval of such Restoration or Replacement Plan; or
(ii) if (A) the Borrower does not deliver such Restoration or Replacement Plan and the accompanying deliveries referred to in Section 8.01(b)(i) within such sixty (60) day period or (B) after the completion of such Restoration or Replacement Plan, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, the Borrower shall on the next succeeding Quarterly Payment Date thereafter, transfer to the Administrative Agent, for the account of the Lenders, an amount equal to such Insurance Proceeds or Condemnation Proceeds, as the case may be, for mandatory prepayment of the Loans in accordance with Section 3.08 (
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