Withdrawals from the Loss Proceeds Account. (a) If there shall occur any single Loss Event with respect to which the replacement value does not exceed $5,000,000, the Net Available Amount of any Loss Proceeds in respect of such Loss Event shall be applied by the Company to the prompt payment of the cost of the repair or restoration of such damage or destruction. (b) If the Company receives Loss Proceeds relating to a Loss Event in respect of a single Loss Event greater than $5,000,000 (as determined by the replacement value of the item of property subject to the Loss Event) and the following conditions have been satisfied or waived by the Required Holders in consultation with the Independent Engineer (the “Conditions to Release of Funds”): (i) such damage or destruction does not constitute the destruction of all or substantially all of the man-made portion of the Project; (ii) no Event of Default has occurred and is continuing (other than an Event of Default resulting solely from such damage or destruction) and after giving effect to any proposed repair and restoration, such damage or destruction or proposed repair and restoration will not result in a Default or Event of Default; (iii) the Company and the Independent Engineer certify, and the Required Holders determine in their reasonable judgment, that repair or restoration of the Project is technically and economically feasible within a one-year period and that a sufficient amount of funds is or will be available to the Company to make such repairs and restorations; (iv) the Required Holders in consultation with the Independent Engineer reasonably determine that after repair and restoration the Project should be as capable of generating Project Revenues as prior to the casualty and consistent with the Base Case Projections; (v) (A) no material Permit is necessary to proceed with the repair and restoration and (B) no material amendment to this Agreement or any of the Operative Documents is necessary for the purpose of effecting the repairs or restorations and (C) no material amendment to this Agreement or any of the Operative Documents is necessary for the purpose of subjecting the repairs or restorations to the Liens of the Collateral Documents, or, if any such is necessary, the Company will be able to obtain such as and when required; (vi) if requested by the Required Holders, the Holders shall receive an opinion of counsel acceptable to Collateral Agent, at the Company’s expense, opining as to the matters described in clauses (A) and (C) of paragraph (v) above, and such opinion shall also state that that such repairs or restoration will be subject to the Liens of the Collateral Documents; and (vii) Collateral Agent shall receive such additional title insurance, title insurance endorsements, mechanic’s lien waivers, certificates, opinions or other matters as Required Holders may reasonably request as necessary or appropriate in connection with such repairs or restoration or to preserve or protect the holders of the Notes’ interests hereunder and in the Collateral. then the Net Available Amount of such Loss Proceeds shall be applied by the Company to the prompt repair or restoration of the Project in accordance with the following procedures: (i) the Company shall submit a detailed report to Collateral Agent describing the Company’s plan for effectuating repairs or restoration, and such report shall be subject to the review and approval of the Required Holders in consultation with the Independent Engineer (such approval not to be unreasonably withheld). (ii) from time to time after the Required Holders shall have duly approved the making of such repairs or restoration, Collateral Agent’s release of Loss Proceeds for application toward such repairs or restoration shall be conditioned upon the Company’s request and the presentation to Collateral Agent of a certificate from the Company (i) describing in reasonable detail the nature of the repairs or restoration to be effected with such release, (ii) stating the cost of such repairs or restoration and the specific amount requested to be paid over to or upon the order of the Company and that such amount is requested to pay the cost thereof, (iii) stating that the aggregate amount requested by the Company in respect of such repairs or restoration (when added to any other Loss Proceeds received by the Company in respect of such damage of destruction) does not exceed the cost of such repairs or restoration and that a sufficient amount of funds is or will be available to the Company to repair or restore the Project, and (iv) stating that no Event of Default has occurred and is continuing other than an Event of Default resulting solely from such damage or destruction. (c) If the Company receives Loss Proceeds relating to a Loss Event in respect of a single Loss Event greater than $5,000,000 (as determined by the replacement value of the item of property subject to the Loss Event) and the Conditions to Release of Funds are not met, then the Net Available Amount of such Loss Proceeds shall be applied to the mandatory prepayment of the Notes pursuant to Section 8.1.2(i) of the Note Purchase Agreement.
Appears in 1 contract
Withdrawals from the Loss Proceeds Account. (a) If there shall occur any single Loss Event with respect to which the replacement value does not exceed $5,000,000[***], the Net Available Amount of any Loss Proceeds in respect of such Loss Event shall be applied by the Company to the prompt payment of the cost of the repair or restoration of such damage or destruction.
(b) If the Company receives Loss Proceeds relating to a Loss Event in respect of a single Loss Event greater than $5,000,000 [***] (as determined by the replacement value of the item of property subject to the Loss Event) and the following conditions have been satisfied or waived by the Required Holders in consultation with the Independent Engineer (the “Conditions to Release of Funds”):
(i) such damage or destruction does not constitute the destruction of all or substantially all of the man-made portion of the Project;
(ii) no Event of Default has occurred and is continuing (other than an Event of Default resulting solely from such damage or destruction) and after giving effect to any proposed repair and restoration, such damage or destruction or proposed repair and restoration will not result in a Default or Event of Default;
(iii) the Company and the Independent Engineer certify, and the Required Holders determine in their reasonable judgment, that repair or restoration of the Project is technically and economically feasible within a one-year period and that a sufficient amount of funds is or will be available to the Company to make such repairs and restorations;
(iv) the Required Holders in consultation with the Independent Engineer reasonably determine that after repair and restoration the Project should be as capable of generating Project Revenues as prior to the casualty and consistent with the Base Case Projections;; [***] Confidential Treatment Requested
(v) (A) no material Permit is necessary to proceed with the repair and restoration and (B) no material amendment to this Agreement or any of the Operative Documents is necessary for the purpose of effecting the repairs or restorations and (C) no material amendment to this Agreement or any of the Operative Documents is necessary for the purpose of subjecting the repairs or restorations to the Liens of the Collateral Documents, or, if any such is necessary, the Company will be able to obtain such as and when required;
(vi) if requested by the Required Holders, the Holders shall receive an opinion of counsel acceptable to Collateral Agent, at the Company’s expense, opining as to the matters described in clauses (A) and (C) of paragraph (v) above, and such opinion shall also state that that such repairs or restoration will be subject to the Liens of the Collateral Documents; and
(vii) Collateral Agent shall receive such additional title insurance, title insurance endorsements, mechanic’s lien waivers, certificates, opinions or other matters as Required Holders may reasonably request as necessary or appropriate in connection with such repairs or restoration or to preserve or protect the holders of the Notes’ interests hereunder and in the Collateral. then the Net Available Amount of such Loss Proceeds shall be applied by the Company to the prompt repair or restoration of the Project in accordance with the following procedures:
(i) the Company shall submit a detailed report to Collateral Agent describing the Company’s plan for effectuating repairs or restoration, and such report shall be subject to the review and approval of the Required Holders in consultation with the Independent Engineer (such approval not to be unreasonably withheld).
(ii) from time to time after the Required Holders shall have duly approved the making of such repairs or restoration, Collateral Agent’s release of Loss Proceeds for application toward such repairs or restoration shall be conditioned upon the Company’s request and the presentation to Collateral Agent of a certificate from the Company (i) describing in reasonable detail the nature of the repairs or restoration to be effected with such release, (ii) stating the cost of such repairs or restoration and the specific amount requested to be paid over to or upon the order of the Company and that such amount is requested to pay the cost thereof, (iii) stating that the aggregate amount requested by the Company in respect of such repairs or restoration (when added to any other Loss Proceeds received by the Company in respect of such damage of destruction) does not exceed the cost of such repairs or restoration and that a sufficient amount of funds is or will be available to the Company to repair or restore the Project, and (iv) stating that no Event of Default has occurred and is continuing other than an Event of Default resulting solely from such damage or destruction.
(c) If the Company receives Loss Proceeds relating to a Loss Event in respect of a single Loss Event greater than $5,000,000 [***] (as determined by the replacement value of the item of property subject to the Loss Event) and the Conditions to Release of Funds are not met, then the Net Available Amount of such Loss Proceeds shall be applied to the mandatory prepayment of the Notes pursuant to Section 8.1.2(i) of the Note Purchase Agreement.
Appears in 1 contract
Withdrawals from the Loss Proceeds Account. (a) If there shall occur any single Loss Event with respect to which the replacement value does not exceed $5,000,000[***], the Net Available Amount of any Loss Proceeds in respect of such Loss Event shall be applied by the Company to the prompt payment of the cost of the repair or restoration of such damage or destruction.
(b) (I) If the Company receives Loss Proceeds relating to a Loss Event in respect of a single Loss Event greater than $5,000,000 [***] (as determined by the replacement value of the item of property subject to the Loss Event) and the following conditions have been satisfied or waived by the Required Holders in consultation with the Independent Engineer (the “Conditions to Release of Funds”):
(i) such damage or destruction does not constitute the destruction of all or substantially all of the man-made portion of the Project;; [***] Confidential Treatment Requested
(ii) no Event of Default has occurred and is continuing (other than an Event of Default resulting solely from such damage or destruction) and after giving effect to any proposed repair and restoration, such damage or destruction or proposed repair and restoration will not result in a Default or Event of Default;
(iii) the Company and the Independent Engineer certify, and the Required Holders determine in their reasonable judgment, that repair or restoration of the Project is technically and economically feasible within a one-year period and that a sufficient amount of funds is or will be available to the Company to make such repairs and restorations;
(iv) the Required Holders in consultation with the Independent Engineer reasonably determine that after repair and restoration the Project should be as capable of generating Project Revenues as prior to the casualty and consistent with the Base Case Projections;
(v) (A) no material Permit is necessary to proceed with the repair and restoration and (B) no material amendment to this Agreement or any of the Operative Documents is necessary for the purpose of effecting the repairs or restorations and (C) no material amendment to this Agreement or any of the Operative Documents is necessary for the purpose of subjecting the repairs or restorations to the Liens of the Collateral Documents, or, if any such is necessary, the Company will be able to obtain such as and when required;
(vi) if requested by the Required Holders, the Holders shall receive an opinion of counsel acceptable to Collateral Agent, at the Company’s expense, opining as to the matters described in clauses (A) and (C) of paragraph (v) above, and such opinion shall also state that that such repairs or restoration will be subject to the Liens of the Collateral Documents;
(vii) no periodic payments are being made or required to be made under the Policy; and
(viiviii) Collateral Agent shall receive such additional title insurance, title insurance endorsements, mechanic’s lien waivers, certificates, opinions or other matters as Required Holders may reasonably request as necessary or appropriate in connection with such repairs or restoration or to preserve or protect the holders of the Notes’ interests hereunder and in the Collateral. then the Net Available Amount of such Loss Proceeds shall be applied by the Company to the prompt repair or restoration of the Project in accordance with the following procedures:
(i) the Company shall submit a detailed report to Collateral Agent describing the Company’s plan for effectuating repairs or restoration, and such report shall be subject to the review and approval of the Required Holders in consultation with the Independent Engineer (such approval not to be unreasonably withheld).
(ii) from time to time after the Required Holders shall have duly approved the making of such repairs or restoration, Collateral Agent’s release of Loss Proceeds for application toward such repairs or restoration shall be conditioned upon the Company’s request and the presentation to Collateral Agent of a certificate from the Company (i) describing in reasonable detail the nature of the repairs or restoration to be effected with such release, (ii) stating the cost of such repairs or restoration and the specific amount requested to be paid over to or upon the order of the Company and that such amount is requested to pay the cost thereof, (iii) stating that the aggregate amount requested by the Company in respect of such repairs or restoration (when added to any other Loss Proceeds received by the Company in respect of such damage of destruction) does not exceed the cost of such repairs or restoration and that a sufficient amount of funds is or will be available to the Company to repair or restore the Project, and (iv) stating that no Event of Default has occurred and is continuing other than an Event of Default resulting solely from such damage or destruction.
(c) If the Company receives Loss Proceeds relating to a Loss Event in respect of a single Loss Event greater than $5,000,000 (as determined by the replacement value of the item of property subject to the Loss Event) and the Conditions to Release of Funds are not met, then the Net Available Amount of such Loss Proceeds shall be applied to the mandatory prepayment of the Notes pursuant to Section 8.1.2(i) of the Note Purchase Agreement.,
Appears in 1 contract
Withdrawals from the Loss Proceeds Account. (a) If there shall occur any single Loss Event with respect to which the replacement value does not exceed $5,000,000[***], the Net Available Amount of any Loss Proceeds in respect of such Loss Event shall be applied by the Company to the prompt payment of the cost of the repair or restoration of such damage or destruction.
(b) (I) If the Company receives Loss Proceeds relating to a Loss Event in respect of a single Loss Event greater than $5,000,000 [***] (as determined by the replacement value of the item of property subject to the Loss Event) and the following conditions have been satisfied or waived by the Required Holders in consultation with the Independent Engineer (the “Conditions to Release of Funds”):
(i) such damage or destruction does not constitute the destruction of all or substantially all of the man-made portion of the Project;; [***] Confidential Treatment Requested
(ii) no Event of Default has occurred and is continuing (other than an Event of Default resulting solely from such damage or destruction) and after giving effect to any proposed repair and restoration, such damage or destruction or proposed repair and restoration will not result in a Default or Event of Default;
(iii) the Company and the Independent Engineer certify, and the Required Holders determine in their reasonable judgment, that repair or restoration of the Project is technically and economically feasible within a one-year period and that a sufficient amount of funds is or will be available to the Company to make such repairs and restorations;
(iv) the Required Holders in consultation with the Independent Engineer reasonably determine that after repair and restoration the Project should be as capable of generating Project Revenues as prior to the casualty and consistent with the Base Case Projections;
(v) (A) no material Permit is necessary to proceed with the repair and restoration and (B) no material amendment to this Agreement or any of the Operative Documents is necessary for the purpose of effecting the repairs or restorations and (C) no material amendment to this Agreement or any of the Operative Documents is necessary for the purpose of subjecting the repairs or restorations to the Liens of the Collateral Documents, or, if any such is necessary, the Company will be able to obtain such as and when required;
(vi) if requested by the Required Holders, the Holders shall receive an opinion of counsel acceptable to Collateral Agent, at the Company’s expense, opining as to the matters described in clauses (A) and (C) of paragraph (v) above, and such opinion shall also state that that such repairs or restoration will be subject to the Liens of the Collateral Documents;
(vii) no periodic payments are being made or required to be made under the Policy; and
(viiviii) Collateral Agent shall receive such additional title insurance, title insurance endorsements, mechanic’s lien waivers, certificates, opinions or other matters as Required Holders may reasonably request as necessary or appropriate in connection with such repairs or restoration or to preserve or protect the holders of the Notes’ interests hereunder and in the Collateral. then the Net Available Amount of such Loss Proceeds shall be applied by the Company to the prompt repair or restoration of the Project in accordance with the following procedures:
(i) the Company shall submit a detailed report to Collateral Agent describing the Company’s plan for effectuating repairs or restoration, and such report shall be subject to the review and approval of the Required Holders in consultation with the Independent Engineer (such approval not to be unreasonably withheld).
(ii) from time to time after the Required Holders shall have duly approved the making of such repairs or restoration, Collateral Agent’s release of Loss Proceeds for application toward such repairs or restoration shall be conditioned upon the Company’s request and the presentation to Collateral Agent of a certificate from the Company (i) describing in reasonable detail the nature of the repairs or restoration to be effected with such release, (ii) stating the cost of such repairs or restoration and the specific amount requested to be paid over to or upon the order of the Company and that such amount is requested to pay the cost thereof, (iii) stating that the aggregate amount requested by the Company in respect of such repairs or restoration (when added to any other Loss Proceeds received by the Company in respect of such damage of destruction) does not exceed the cost of such repairs or restoration and that a sufficient amount of funds is or will be available to the Company to repair or restore the Project, and (iv) stating that no Event of Default has occurred and is continuing other than an Event of Default resulting solely from such damage or destruction.
(c) If the Company receives Loss Proceeds relating to a Loss Event in respect of a single Loss Event greater than $5,000,000 (as determined by the replacement value of the item of property subject to the Loss Event) and the Conditions to Release of Funds are not met, then the Net Available Amount of such Loss Proceeds shall be applied to the mandatory prepayment of the Notes pursuant to Section 8.1.2(i) of the Note Purchase Agreement.,
Appears in 1 contract
Withdrawals from the Loss Proceeds Account. (a) If there shall occur any single Loss Event with respect to which the replacement value does not exceed $5,000,000[***], the Net Available Amount of any Loss Proceeds in respect of such Loss Event shall be applied by the Company to the prompt payment of the cost of the repair or restoration of such damage or destruction.
(b) If the Company receives Loss Proceeds relating to a Loss Event in respect of a single Loss Event greater than $5,000,000 [***] (as determined by the replacement value of the item of property subject to the Loss Event) and the following conditions have been satisfied or waived by the Required Holders in consultation with the Independent Engineer (the “Conditions to Release of Funds”):
(i) such damage or destruction does not constitute the destruction of all or substantially all of the man-made portion of the Project;
(ii) no Event of Default has occurred and is continuing (other than an Event of Default resulting solely from such damage or destruction) and after giving effect to any proposed repair and restoration, such damage or destruction or proposed repair and restoration will not result in a Default or Event of Default;
(iii) the Company and the Independent Engineer certify, and the Required Holders determine in their reasonable judgment, that repair or restoration of the Project is technically and economically feasible within a one-year period and that a sufficient amount of funds is or will be available to the Company to make such repairs and restorations;
(iv) the Required Holders in consultation with the Independent Engineer reasonably determine that after repair and restoration the Project should be as capable of generating Project Revenues as prior to the casualty and consistent with the Base Case Projections;; [***] Confidential Treatment Requested
(v) (A) no material Permit is necessary to proceed with the repair and restoration and (B) no material amendment to this Agreement or any of the Operative Documents is necessary for the purpose of effecting the repairs or restorations and (C) no material amendment to this Agreement or any of the Operative Documents is necessary for the purpose of subjecting the repairs or restorations to the Liens of the Collateral Documents, or, if any such is necessary, the Company will be able to obtain such as and when required;
(vi) if requested by the Required Holders, the Holders shall receive an opinion of counsel acceptable to Collateral Agent, at the Company’s expense, opining as to the matters described in clauses (A) and (C) of paragraph (v) above, and such opinion shall also state that that such repairs or restoration will be subject to the Liens of the Collateral Documents; and
(vii) Collateral Agent shall receive such additional title insurance, title insurance endorsements, mechanic’s lien waivers, certificates, opinions or other matters as Required Holders may reasonably request as necessary or appropriate in connection with such repairs or restoration or to preserve or protect the holders of the Notes’ interests hereunder and in the Collateral. then the Net Available Amount of such Loss Proceeds shall be applied by the Company to the prompt repair or restoration of the Project in accordance with the following procedures:
(i) the Company shall submit a detailed report to Collateral Agent describing the Company’s plan for effectuating repairs or restoration, and such report shall be subject to the review and approval of the Required Holders in consultation with the Independent Engineer (such approval not to be unreasonably withheld).
(ii) from time to time after the Required Holders shall have duly approved the making of such repairs or restoration, Collateral Agent’s release of Loss Proceeds for application toward such repairs or restoration shall be conditioned upon the Company’s request and the presentation to Collateral Agent of a certificate from the Company (i) describing in reasonable detail the nature of the repairs or restoration to be effected with such release, (ii) stating the cost of such repairs or restoration and the specific amount requested to be paid over to or upon the order of the Company and that such amount is requested to pay the cost thereof, (iii) stating that the aggregate amount requested by the Company in respect of such repairs or restoration (when added to any other Loss Proceeds received by the Company in respect of such damage of destruction) does not exceed the cost of such repairs or restoration and that a sufficient amount of funds is or will be available to the Company to repair or restore the Project, and (iv) stating that no Event of Default has occurred and is continuing other than an Event of Default resulting solely from such damage or destruction.
(c) If the Company receives Loss Proceeds relating to a Loss Event in respect of a single Loss Event greater than $5,000,000 [***] (as determined by the replacement value of the item of property subject to the Loss Event) and the Conditions to Release of Funds are not met, then the Net Available Amount of such Loss Proceeds shall be applied to the mandatory prepayment of the Notes pursuant to Section 8.1.2(i) of the Note Purchase Agreement.
Appears in 1 contract
