Loss Proceeds. In the event of a casualty or Taking with respect to an Individual Property and unless pursuant to the Related Mortgage the proceeds, net of Borrower's reasonable collection costs approved by Lender, received under any insurance policy required to be maintained by Borrower ("Insurance Proceeds") or the proceeds, net of Borrower's reasonable collection costs approved by Lender, in respect of any Taking ("Condemnation Proceeds"), as the case may be, are to be made available to Borrower for restoration, Lender and Borrower shall cause all such Insurance Proceeds or Condemnation Proceeds (collectively, "Loss Proceeds") to be paid directly to the Cash Collateral Account whereupon Lender or Servicer, as the case may be, shall apply same to reduce the Indebtedness in accordance with Section 2.7(b). If Lender agrees or is required pursuant to the provisions hereof or of the Related Mortgage to make Loss Proceeds available for restoration, (i) all Insurance Proceeds received in respect of business interruption coverage and (ii) any Condemnation Proceeds received in connection with a temporary Taking shall be maintained in the Cash Collateral Account, to be applied by Lender in the same manner as Rent received from Manager with respect to the operation of such Individual Property; provided, further, that in the event that the Insurance Proceeds of any such business interruption insurance policy or Condemnation Proceeds of such temporary Taking are paid in a lump sum in advance, Lender shall hold such Insurance Proceeds or
Appears in 1 contract
Loss Proceeds. In (1) All insurance policies required hereby covering loss or damage to the Project shall provide that all Compensation Payments be applied as described below. Upon the occurrence of any event of a casualty or Taking with respect to an Individual Property and unless pursuant to the Related Mortgage the proceeds, net of Borrower's reasonable collection costs approved by Lender, received under any insurance policy required to be maintained by Borrower ("Insurance Proceeds") or the proceeds, net of Borrower's reasonable collection costs approved by Lenderwhich Compensation Payments are payable, in respect of a single event, (x) in an amount not in excess of $500,000, the Companies shall be permitted to apply such Compensation Payments to the prompt payment or reimbursement of the costs of repair or replacement of properties or assets constituting part of the Project subject to the terms of subsection (2) of this Section (J) or (y) in an amount in excess of $500,000, the Companies shall be permitted to apply such Compensation Payments to the prompt payment or reimbursement of the costs of repair or replacement of properties or assets constituting part of the Project subject to the terms of subsection (2) of this Section (J) if, and only if, the Companies shall have furnished to OPIC and OPIC shall be satisfied with, and shall have consented to, the following:
(a) contracts for such repair or replacement demonstrating the Company’s ability to effect such repair or replacement (i) at a cost no greater than such Compensation Payments (or, if such cost is greater, accompanied by an explanation of the source of funds for such excess amounts satisfactory to OPIC) and (ii) on a schedule reasonably acceptable to OPIC;
(b) cash-flow projections and other assurances satisfactory to OPIC demonstrating the Companies’ ability to meet their obligations under the Financing Documents during the period from such loss until and following completion of such repair or replacement;
(c) evidence that all required approvals of all Governmental Authorities to be obtained by the Companies or any Taking contractor in connection with the necessary repairs and replacements have been obtained or are readily obtainable without material delay or expense; and
("Condemnation Proceeds")d) evidence that all Financing Documents and such required approvals shall remain in full force and effect during such period and thereafter to OPIC’s satisfaction and that the Companies and the Project are in compliance in all material respects with all applicable laws (except for any non-compliance caused by the casualty or other event that gave rise to the payment of such Compensation Payments that (i) will not prevent or materially delay the repairs or replacements proposed to be made, as (ii) will not result in any material liability or obligation being imposed on the Companies, (iii) will not prevent the resumption of construction or normal operations of the Project in accordance with the Project Documents and substantially in accordance with the base case may be, are projections for the Project upon the completion of the repairs or replacements proposed to be made available and (iv) will be cured upon completion of the repairs or replacements proposed to Borrower be made);
(2) Upon completion of any repair or replacement of properties or assets constituting part of the Project, and upon filing with OPIC of (a) a certificate of an Authorized Officer, certifying the completion f the repair or replacement of properties or assets constituting part of the Project and the amount, if any, required in the Companies’ opinion to be retained in an account approved by OPIC and pledged to OPIC to OPIC’s satisfaction for restorationthe payment of any remaining costs of repair or replacement not then due and payable or the liability for payment of which is being contested or disputed by the Companies and (b) a certificate from the Independent Engineer stating that, Lender based upon reasonable investigation and review, all of the information material to the repair or replacement of properties or assets constituting part of the Project set forth in such Authorized Officer’s certificate is true and complete in all material respects, the Compensation Payments, if any, in excess of that amount to be retained by OPIC as specified in such Authorized Officer’s certificate, shall be transferred to an account approved by OPIC and pledged to OPIC to OPIC’s satisfaction.
(3) If any Compensation Payments are not permitted to be applied in accordance with subsections (1) or (2) of this Section (J), or if so permitted are not so applied in accordance with subsections (1) or (2) of this Section (J) within sixty (60) days following receipt of such Compensation Payments, then, if the aggregate amount of such Compensation Payments not so otherwise applied exceeds $500,000, the Borrower shall cause all be obligated, to the extent required hereunder, to prepay the principal amount of the Loan, in an amount that equals in the aggregate of such Insurance Proceeds Compensation Payments not so otherwise applied (or Condemnation Proceeds (collectively, "Loss Proceeds") approved to be paid directly so applied); provided, however, that if the aggregate amount of such Compensation Payments not so otherwise applied shall not exceed $500,000 following such sixty (60) day period, then such amounts shall be transferred to the Cash Collateral Account whereupon Lender or Serviceran account approved by OPIC and pledged to OPIC to OPIC’s satisfaction;
(4) Notwithstanding subsections (1), as the case may be(2) and (3) above, if an Event of Default shall have occurred and be continuing, OPIC shall apply same to reduce all Compensation Payments as a prepayment of the Indebtedness Loan in accordance with Section 2.7(b). If Lender agrees or is required 2.06 and any other permitted payee of such Compensation Payments shall apply all such amounts as a prepayment of the Loan pursuant to Section 2.07. In addition to and not in limitation of Section 6.12, the provisions hereof or Borrower shall, and shall cause IL to:
(a) cause the Project to be operated in compliance with the World Bank Guidelines, the OPIC Environmental Requirements and applicable law;
(b) at least ninety (90) days prior to Mechanical Completion (as defined in the Construction Contract, “Mechanical Completion”) submit to OPIC an acceptable Occupational Health and Safety Plan (the “OHSP”) consistent with international best practices, including, but not limited to, safety measures, training, fire safety, and public health safety.
(c) at least ninety (90) days prior to Mechanical Completion, submit to OPIC an acceptable Site location plan showing the exact location of the Related Mortgage Site relative to make Loss Proceeds available its surroundings as well as the extent of earth moving necessary for restorationthe Project. This plan shall be drawn to a legible scale and certified by a surveyor acceptable to OPIC;
(d) at least ninety (90) days prior to the Mechanical Completion, submit to OPIC an acceptable Project layout showing the locations of all key apparatus including, but not limited to, tanks, sumps, jetties, wharf, ponds and major piping. The layout shall be drawn to a legible scale and certified by a surveyor acceptable to OPIC;
(e) at least ninety (90) days prior to Mechanical Completion, submit to OPIC an acceptable waste disposal plan outlining the final disposal of all solid waste generated on the Site during construction and daily operations;
(f) at least ninety (90) days prior to the Mechanical Completion, submit to OPIC an acceptable air emission data for the Project and power generators that shall include, but not be limited to, dimensions, flowrates, velocities, sulfur dioxide, and nitrogen dioxide emissions;
(g) at least ninety (90) days prior to Mechanical Completion, submit to OPIC an acceptable wharf and jetty design and location. This plan shall show, without limitation, the location and design of the wharf(s) and jetties, any and all impacts to the environment (both land and sea), and any dredging that was necessary for the selected locations;
(h) at least ninety (90) days prior to Mechanical Completion, submit to OPIC an acceptable hazardous waste disposal plan outlining the final disposal of all oily and hazardous waste generated on the Site. This plan shall include, but not be limited to, any proposed bioremediation techniques, disposal of slop material and waste holding area;
(i) all Insurance Proceeds received in respect at least ninety (90) days prior to Mechanical Completion, submit to OPIC an acceptable Spill Prevention Control and Countermeasure plan (the “SPCC”) consistent with international best practices. The SPCC shall provide details on, without limitation, secondary containment measures at the fuel storage sites (and any testing done on the constructed tanks to ensure their integrity), actions planned to prevent human exposure (including the proposed tiered response plan), safety from fires, the contamination of business interruption coverage surface water and (ii) any Condemnation Proceeds received in connection with a temporary Taking shall be maintained in the Cash Collateral Account, to be applied by Lender in the same manner as Rent received from Manager with respect to the operation of such Individual Property; provided, further, that groundwater in the event of spills, tank ruptures, or other such incidents, information on truck and oil tanker loading and offloading, bunding material and dimensions, method and material of construction of oil/water separators, tank sizes and material of construction and the amount and type of sorbent material stored on the Site;
(j) at least ninety (90) days prior to Mechanical Completion, submit to OPIC an acceptable Environmental Management and Monitoring Plan (the “EMMP”) consistent with international best practices and including, but not limited to, applicable regulatory standards and guidelines, organizational responsibilities and management, socio-economic impacts and Site background information;
(k) prior to the Project’s third year of operation, submit to OPIC an acceptable independent assessment of the current status of the Project’s compliance with applicable environmental requirements. This audit shall be performed by an independent engineer acceptable to OPIC who has the knowledge to evaluate the roject’s environmental compliance policies, practices and controls;
(l) on each anniversary of the date of the Loan Agreement, submit to OPIC an acceptable annual self-monitoring report. Each such report shall include, without limitation, regular testing results for any emissions standard, effluent standards, noise, reports of material non-compliance with relevant environmental guidelines and requirements and remedial actions required to meet relevant environmental guidelines and requirements; and
(m) within twenty-four (24) hours of its occurrence, submit to OPIC an acceptable written notice of any accident impacting the environment or resulting in the loss of life. Overseas Private Investment Corporation 1▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America Attention: Vice President for Finance with a copy to Treasurer Dear Sir or Madam: Reference is made to the Loan Agreement between E.P. InterOil, Ltd. (the “Company”) and Overseas Private Investment Corporation (“OPIC”) dated as of June 12, 2001 (the “Loan Agreement”). Except as otherwise provided, capitalized terms used herein shall have the meanings set forth in the Loan Agreement. Pursuant to Section 2.01(b) of the Loan Agreement, notice is hereby given that the Insurance Proceeds undersigned requests Disbursement of any such business interruption insurance policy or Condemnation Proceeds the Loan as follows: Amount of such temporary Taking are paid in a lump sum in advance, Lender shall hold such Insurance Proceeds orDisbursement: $[___]
Appears in 1 contract
Sources: Loan Agreement (Interoil Corp)
Loss Proceeds. In (1) All insurance policies required hereby covering loss or damage to the Project shall provide that all Compensation Payments be applied as described below. Upon the occurrence of any event of a casualty or Taking with respect to an Individual Property and unless pursuant to the Related Mortgage the proceeds, net of Borrower's reasonable collection costs approved by Lender, received under any insurance policy required to be maintained by Borrower ("Insurance Proceeds") or the proceeds, net of Borrower's reasonable collection costs approved by Lenderwhich Compensation Payments are payable, in respect of a single event, (x) in an amount not in excess of $500,000, the Companies shall be permitted to apply such Compensation Payments to the prompt payment or reimbursement of the costs of repair or replacement of properties or assets constituting part of the Project subject to the terms of subsection (2) of this Section (J) or (y) in an amount in excess of $500,000, the Companies shall be permitted to apply such Compensation Payments to the prompt payment or reimbursement of the costs of repair or replacement of properties or assets constituting part of the Project subject to the terms of subsection (2) of this Section (J) if, and only if, the Companies shall have furnished to OPIC and OPIC shall be satisfied with, and shall have consented to, the following:
(a) contracts for such repair or replacement demonstrating the Company’s ability to effect such repair or replacement (i) at a cost no greater than such Compensation Payments (or, if such cost is greater, accompanied by an explanation of the source of funds for such excess amounts satisfactory to OPIC) and (ii) on a schedule reasonably acceptable to OPIC;
(b) cash-flow projections and other assurances satisfactory to OPIC demonstrating the Companies’ ability to meet their obligations under the Financing Documents during the period from such loss until and following completion of such repair or replacement;
(c) evidence that all required approvals of all Governmental Authorities to be obtained by the Companies or any Taking contractor in connection with the necessary repairs and replacements have been obtained or are readily obtainable without material delay or expense; and
("Condemnation Proceeds")d) evidence that all Financing Documents and such required approvals shall remain in full force and effect during such period and thereafter to OPIC’s satisfaction and that the Companies and the Project are in compliance in all material respects with all applicable laws (except for any non-compliance caused by the casualty or other event that gave rise to the payment of such Compensation Payments that (i) will not prevent or materially delay the repairs or replacements proposed to be made, as (ii) will not result in any material liability or obligation being imposed on the Companies, (iii) will not prevent the resumption of construction or normal operations of the Project in accordance with the Project Documents and substantially in accordance with the base case may be, are projections for the Project upon the completion of the repairs or replacements proposed to be made available and (iv) will be cured upon completion of the repairs or replacements proposed to Borrower be made);
(2) Upon completion of any repair or replacement of properties or assets constituting part of the Project, and upon filing with OPIC of (a) a certificate of an Authorized Officer, certifying the completion f the repair or replacement of properties or assets constituting part of the Project and the amount, if any, required in the Companies’ opinion to be retained in an account approved by OPIC and pledged to OPIC to OPIC’s satisfaction for restorationthe payment of any remaining costs of repair or replacement not then due and payable or the liability for payment of which is being contested or disputed by the Companies and (b) a certificate from the Independent Engineer stating that, Lender based upon reasonable investigation and review, all of the information material to the repair or replacement of properties or assets constituting part of the Project set forth in such Authorized Officer’s certificate is true and complete in all material respects, the Compensation Payments, if any, in excess of that amount to be retained by OPIC as specified in such Authorized Officer’s certificate, shall be transferred to an account approved by OPIC and pledged to OPIC to OPIC’s satisfaction.
(3) If any Compensation Payments are not permitted to be applied in accordance with subsections (1) or (2) of this Section (J), or if so permitted are not so applied in accordance with subsections (1) or (2) of this Section (J) within sixty (60) days following receipt of such Compensation Payments, then, if the aggregate amount of such Compensation Payments not so otherwise applied exceeds $500,000, the Borrower shall cause all be obligated, to the extent required hereunder, to prepay the principal amount of the Loan, in an amount that equals in the aggregate of such Insurance Proceeds Compensation Payments not so otherwise applied (or Condemnation Proceeds (collectively, "Loss Proceeds") approved to be paid directly so applied); provided, however, that if the aggregate amount of such Compensation Payments not so otherwise applied shall not exceed $500,000 following such sixty (60) day period, then such amounts shall be transferred to the Cash Collateral Account whereupon Lender or Serviceran account approved by OPIC and pledged to OPIC to OPIC’s satisfaction;
(4) Notwithstanding subsections (1), as the case may be(2) and (3) above, if an Event of Default shall have occurred and be continuing, OPIC shall apply same to reduce all Compensation Payments as a prepayment of the Indebtedness Loan in accordance with Section 2.7(b). If Lender agrees or is required 2.06 and any other permitted payee of such Compensation Payments shall apply all such amounts as a prepayment of the Loan pursuant to Section 2.07. In addition to and not in limitation of Section 6.12, the provisions hereof or Borrower shall, and shall cause IL to:
(a) cause the Project to be operated in compliance with the World Bank Guidelines, the OPIC Environmental Requirements and applicable law;
(b) at least ninety (90) days prior to Mechanical Completion (as defined in the Construction Contract, “Mechanical Completion”) submit to OPIC an acceptable Occupational Health and Safety Plan (the “OHSP”) consistent with international best practices, including, but not limited to, safety measures, training, fire safety, and public health safety.
(c) at least ninety (90) days prior to Mechanical Completion, submit to OPIC an acceptable Site location plan showing the exact location of the Related Mortgage Site relative to make Loss Proceeds available its surroundings as well as the extent of earth moving necessary for restorationthe Project. This plan shall be drawn to a legible scale and certified by a surveyor acceptable to OPIC;
(d) at least ninety (90) days prior to the Mechanical Completion, submit to OPIC an acceptable Project layout showing the locations of all key apparatus including, but not limited to, tanks, sumps, jetties, wharf, ponds and major piping. The layout shall be drawn to a legible scale and certified by a surveyor acceptable to OPIC;
(e) at least ninety (90) days prior to Mechanical Completion, submit to OPIC an acceptable waste disposal plan outlining the final disposal of all solid waste generated on the Site during construction and daily operations;
(f) at least ninety (90) days prior to the Mechanical Completion, submit to OPIC an acceptable air emission data for the Project and power generators that shall include, but not be limited to, dimensions, flowrates, velocities, sulfur dioxide, and nitrogen dioxide emissions;
(g) at least ninety (90) days prior to Mechanical Completion, submit to OPIC an acceptable wharf and jetty design and location. This plan shall show, without limitation, the location and design of the wharf(s) and jetties, any and all impacts to the environment (both land and sea), and any dredging that was necessary for the selected locations;
(h) at least ninety (90) days prior to Mechanical Completion, submit to OPIC an acceptable hazardous waste disposal plan outlining the final disposal of all oily and hazardous waste generated on the Site. This plan shall include, but not be limited to, any proposed bioremediation techniques, disposal of slop material and waste holding area;
(i) all Insurance Proceeds received in respect at least ninety (90) days prior to Mechanical Completion, submit to OPIC an acceptable Spill Prevention Control and Countermeasure plan (the “SPCC”) consistent with international best practices. The SPCC shall provide details on, without limitation, secondary containment measures at the fuel storage sites (and any testing done on the constructed tanks to ensure their integrity), actions planned to prevent human exposure (including the proposed tiered response plan), safety from fires, the contamination of business interruption coverage surface water and (ii) any Condemnation Proceeds received in connection with a temporary Taking shall be maintained in the Cash Collateral Account, to be applied by Lender in the same manner as Rent received from Manager with respect to the operation of such Individual Property; provided, further, that groundwater in the event of spills, tank ruptures, or other such incidents, information on truck and oil tanker loading and offloading, bunding material and dimensions, method and material of construction of oil/water separators, tank sizes and material of construction and the amount and type of sorbent material stored on the Site;
(j) at least ninety (90) days prior to Mechanical Completion, submit to OPIC an acceptable Environmental Management and Monitoring Plan (the “EMMP”) consistent with international best practices and including, but not limited to, applicable regulatory standards and guidelines, organizational responsibilities and management, socio-economic impacts and Site background information;
(k) prior to the Project’s third year of operation, submit to OPIC an acceptable independent assessment of the current status of the Project’s compliance with applicable environmental requirements. This audit shall be performed by an independent engineer acceptable to OPIC who has the knowledge to evaluate the roject’s environmental compliance policies, practices and controls;
(l) on each anniversary of the date of the Loan Agreement, submit to OPIC an acceptable annual self-monitoring report. Each such report shall include, without limitation, regular testing results for any emissions standard, effluent standards, noise, reports of material non-compliance with relevant environmental guidelines and requirements and remedial actions required to meet relevant environmental guidelines and requirements; and
(m) within twenty-four (24) hours of its occurrence, submit to OPIC an acceptable written notice of any accident impacting the environment or resulting in the loss of life. Overseas Private Investment Corporation 1▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America Attention: Vice President for Finance with a copy to Treasurer Dear Sir or Madam: Reference is made to the Loan Agreement between E.P. InterOil, Ltd. (the “Company”) and Overseas Private Investment Corporation (“OPIC”) dated as of June 12, 2001 (the “Loan Agreement”). Except as otherwise provided, capitalized terms used herein shall have the meanings set forth in the Loan Agreement. Pursuant to Section 2.01(b) of the Loan Agreement, notice is hereby given that the Insurance Proceeds undersigned requests Disbursement of any such business interruption insurance policy or Condemnation Proceeds the Loan as follows: Amount of such temporary Taking Disbursement: $[ ] Closing Date: Not less than ten (10) Business Days from the date OPIC receives this Disbursement Request. Repayment Schedule for this Disbursement: [ ] 1 $ [ ] Please indicate your agreement with this repayment schedule by returning to us by fax an executed version of the attached schedule. The proceeds of the Disbursement are paid needed for purposes of the Project to meet the following expenses (which will be described in a lump sum greater detail and documented in advancethe Officer Certificate to be delivered pursuant to Section 5.03):
1. [ ] 2. [ ] $ [ ] of the proceeds of this Disbursement will be held in [specify account]. It is anticipated that these funds will be needed for the following purposes at the following times: [ ] As of the Closing Date, Lender shall hold such Insurance Proceeds oreach of the conditions set forth in [Articles 4 and 5] [Article 5] will be satisfied. Very truly yours,
Appears in 1 contract
Sources: Loan Agreement (Interoil Corp)
Loss Proceeds. In All Loss Proceeds shall be applied as provided in this Section 5.28 and the event Depositary Agreement. All Loss Proceeds shall be paid by the relevant insurers, reinsurers and Governmental Authorities, as applicable, directly to the Collateral Agent, for the benefit of a casualty or Taking the Secured Parties, as loss payee and, if paid to any Borrower Party such Loss Proceeds shall be received in trust for the benefit of Collateral Agent, on behalf of the Secured Parties, segregated from other funds of the Borrower Parties and shall be promptly paid over to the Collateral Agent, for the benefit of the Secured Parties, in the same form as received (with any necessary endorsement), for deposit into the Loss Proceeds Account. The Collateral Agent shall apply all such Loss Proceeds in accordance with the provisions of this Section 5.28.
(a) Upon the occurrence of any Casualty Event with respect to an Individual Property and unless pursuant to the Related Mortgage the proceeds, net of Borrower's reasonable collection costs approved by Lender, received under any insurance policy required to be maintained by Borrower ("Insurance Proceeds") or the proceeds, net of Borrower's reasonable collection costs approved by Lender, which Loss Proceeds are payable in respect of any Taking ("Condemnation Proceeds")a single loss in an amount not in excess of $2,000,000, as the case may beBorrower shall apply, are or cause to be applied, such Loss Proceeds to the payment of the costs of repair or restoration of the portion of the Project lost or damaged or replacement of equipment for the Project lost or damaged, and disbursement of such funds by Collateral Agent shall be made available in accordance with the Depositary Agreement.
(b) Upon the occurrence of any Casualty Event with respect to Borrower for restorationwhich Loss Proceeds are payable in respect of a single loss in an amount in excess of $2,000,000, Lender and Borrower shall cause all such Insurance Proceeds or Condemnation Proceeds (collectively, "Loss Proceeds") disbursement of funds to be paid directly applied to the Cash Collateral Account whereupon Lender payment of the costs of repair or Servicer, as restoration of the case may be, portion of the Project lost or damaged or replacement of equipment for the Project lost or damaged in accordance with the Depositary Agreement shall apply same be permitted if the conditions set forth in the Depositary Agreement with respect to reduce the Indebtedness such disbursement of funds has been satisfied.
(c) All Loss Proceeds not otherwise applied in accordance with Section 2.7(b5.28(a) or Section 5.28(b). If Lender agrees or is required pursuant , including, without limitation, due to the provisions hereof absence of required approval by Administrative Agent or of the Related Mortgage to make Loss Proceeds available for restorationRequired Lenders (in consultation with the Independent Engineer), (i) all Insurance Proceeds received in respect of business interruption coverage and (ii) any Condemnation Proceeds received in connection with a temporary Taking as applicable, shall be maintained in the Cash Collateral Account, to be applied by Lender in the same manner as Rent received from Manager with respect Collateral Agent to the operation prepayment of such Individual Property; provided, further, that Loans in the event that the Insurance Proceeds of any such business interruption insurance policy or Condemnation Proceeds of such temporary Taking are paid in a lump sum in advance, Lender shall hold such Insurance Proceeds oraccordance with Section 2.8(a).
Appears in 1 contract
Sources: Credit Agreement (Sunpower Corp)