Mandatory Repayments (a) On any day on which the sum of (I) the aggregate outstanding principal amount of all Revolving Loans (after giving effect to all other repayments thereof on such date), (II) the aggregate outstanding principal amount of all Swingline Loans (after giving effect to all other repayments thereof on such date) and (III) the aggregate amount of all Letter of Credit Outstandings, exceeds the Total Revolving Loan Commitment at such time, the Borrower shall prepay on such day the principal of Swingline Loans and, after all Swingline Loans have been repaid in full or if no Swingline Loans are outstanding, Revolving Loans, in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Swingline Loans and Revolving Loans, the aggregate amount of the Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment at such time, the Borrower shall pay to the Administrative Agent at the Payment Office on such day an amount of cash and/or Permitted Investments equal to the amount of such excess (up to a maximum amount equal to the Letter of Credit Outstandings at such time), such cash and/or Permitted Investments to be held as security for all Obligations of the Borrower to the Issuing Lenders and the Lenders hereunder in a cash collateral account to be established by the Administrative Agent.
(b) In addition to any other mandatory repayments pursuant to this Section 5.02, (x) on each Quarterly Payment Date, beginning with the Quarterly Payment Date occurring in September, 2010, the Borrower shall be required to repay that principal amount of Term Loans, to the extent then outstanding, as is equal to ¼ of 1% of the aggregate initial principal amounts of all Term Loans theretofore borrowed by the Borrower pursuant to Section 2.01 of this Agreement (without double counting any B-2 Term Loans converted into B-1 Term Loans), and (y) on the Term Loan Maturity Date (with the Term Loan Maturity Date and each Quarterly Payment Date described in preceding clause (x), each a “Scheduled Term Loan Repayment Date”), the Borrower shall be required to repay in full the entire principal amount of Term Loans then outstanding (with each such repayment pursuant to this Section 5.02(b), as the same may be reduced as provided in Section 5.01(a), 5.01(b) or 5.02(h), a “Scheduled Term Loan Repayment”). All repayments pursuant to this clause (b) shall be applied to repay outstanding B-1 Term Loans, as all theretofore outstanding B-2 Term Loans shall have been required to be converted into B-1 Term Loans in accordance with Section 2.01 hereof prior to the initial Scheduled Term Loan Repayment Date.
(c) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date on or after the Initial Borrowing Date upon which Holdings or any of its Subsidiaries receives any cash proceeds from any issuance or incurrence by Holdings or any of its Subsidiaries of Indebtedness (other than Indebtedness permitted to be incurred pursuant to Section 11.01, except that Indebtedness incurred pursuant to clause (B) of Section 11.01(i) shall not be excluded pursuant to this parenthetical), an amount equal to 100% of the Net Cash Proceeds of the respective incurrence of Indebtedness shall be applied on such date in accordance with the requirements of Sections 5.02(g) and (h).
(d) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date on or after the Effective Date upon which Holdings or any of its Subsidiaries receives any cash proceeds from any Asset Sale or Recovery Event, an amount equal to 100% of the Net Cash Proceeds therefrom shall be applied on such date in accordance with the requirements of Sections 5.02(g) and (h); provided, however, that such Net Cash Proceeds shall not be required to be so applied on such date so long as no Event of Default then exists and such Net Cash Proceeds shall be used to purchase assets used or to be used in the businesses permitted pursuant to Section 11.03(b) within 540 days following the date of such Asset Sale or Recovery Event, and provided further, that if all or any portion of such Net Cash Proceeds not required to be so applied as provided above in this Section 5.02(d) are not so reinvested within such 540-day period (or such earlier date, if any, as Holdings or the relevant Subsidiary determines not to reinvest the Net Cash Proceeds from such Asset Sale or Recovery Event as set forth above), such remaining portion shall be applied on the last day of such period (or such earlier date, as the case may be) as provided above in this Section 5.02(d) without regard to the preceding proviso.
(e) In addition to any other mandatory repayments pursuant to this Section 5.02, on each Excess Cash Payment Date, an amount equal to 50% of the Excess Cash Flow for the related Excess Cash Payment Period shall be applied as a mandatory repayment in accordance with the requirements of Sections 5.02(g) and (h); provided, however, so long as no Event of Default then exists and if the Total Leverage Ratio as of the last day of the respective Excess Cash Payment Period is less than or equal to 1.25:1.00 (but greater than 0.75:1.00), the foregoing percentage shall be reduced to 25% for the respective Excess Cash Payment Period; provided further that so long as no Event of Default then exists and is continuing and if the Total Leverage Ratio as of the last day of the respective Excess Cash Payment Period is less than or equal to 0.75:1.00, the foregoing percentage shall be reduced to 0% for the respective Excess Cash Payment Period.
(f) In addition to any other mandatory repayments pursuant to this Section 5.02, on each date on or after the Effective Date and on or prior to the Merger Closing Date upon which Holdings receives any cash proceeds from the sale or issuance of its Equity Interests, an amount equal to 100% of the Net Cash Proceeds of such sale or issuance of Equity Interests shall be applied on such date as a mandatory repayment and/or commitment reduction in accordance with the requirements of Sections 5.02(g) and (h).
(g) Each amount required to be applied pursuant to Sections 5.02(c), (d), (e) and (f) in accordance with this Section 5.02(g) shall be applied (i) first, if on or prior to the Merger Closing Date, to reduce (on a dollar for dollar basis) the Total B-2 Term Loan Commitment, (ii) second, if on or prior to the Merger Closing Date, and if the Total B-2 Term Loan Commitment has been terminated, to reduce (on a dollar for dollar basis) the Total B-1 Term Loan Commitment, (iii) third, to the extent in excess of the amounts required to be applied pursuant to the preceding clauses (i) and (ii), to repay the outstanding principal amount of Term Loans and (iv) fourth, to the extent in excess of the amounts required to be applied pursuant to preceding clauses (i) through (iii), inclusive, to repay the outstanding principal amount of Revolving Loans and/or Swingline Loans (to the extent then outstanding). The amount of each principal repayment of outstanding principal of Term Loans made as required by Sections 5.02(c), (d), (e) and (f) shall be applied (i) pro rata to the then outstanding Term Loans of the Lenders; provided that any payments required pursuant to Section 5.02(c) and (f) prior to the B-1 Conversion Date shall be required to be applied (x) first, to then outstanding principal of B-2 Term Loans until they are paid in full and (y) second, to the extent in excess thereof, to repay then outstanding principal of B-1 Term Loans, and (ii) to reduce the then remaining Scheduled Term Loan Repayments on a pro rata basis (based upon the then remaining principal amounts of the Scheduled Term Loan Repayments after giving effect to all prior reductions thereto). Notwithstanding the foregoing priorities, with respect to not more than $200,000,000 aggregate principal amount of Permitted Refinancing Indebtedness incurred pursuant to Section 11.01(i)(B), the Lead Arrangers may (in their sole discretion) at the request of the Borrower allow the utilization of same as contemplated by clause (y) of the proviso to Section 11.01(i) before requiring that such amounts be applied as otherwise required pursuant to the two preceding sentences of this Section 5.02(g).
(h) All repayments of the Loans of a given Tranche required by this Section 5.02 shall be made on a pro rata basis to the Lenders of such Tranche of Loans (based upon their respective relative outstanding principal amounts of such Loans). With respect to each repayment of Loans required by this Section 5.02, the Borrower may designate the Types of Loans of the respective Tranche which are to be repaid and, in the case of Eurodollar Loans, the specific Borrowing or Borrowings of the respective Tranche pursuant to which such Eurodollar Loans were made, provided that: (i) repayments of Eurodollar Loans pursuant to this Section 5.02 may only be made on the last day of an Interest Period applicable thereto unless all Eurodollar Loans of the respective Tranche with Interest Periods ending on such date of required repayment and all Base Rate Loans of the respective Tranche have been paid in full; (ii) if any repayment of Eurodollar Loans made pursuant to a single Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto, such Borrowing shall be automatically converted into a Borrowing of Base Rate Loans on the last day of the Interest Period then applicable thereto unless otherwise repaid at or prior to the end of the Interest Period then in effect; and (iii) each repayment of any Loans made pursuant to a Borrowing shall be applied pro rata among such Loans. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.
(i) In addition to any other mandatory repayments pursuant to this Section 5.02, (i) all then outstanding Loans of a respective Tranche (other than Swingline Loans) shall be repaid in full on the respective Maturity Date for such Tranche of Loans, (ii) outstanding Swingline Loans shall be repaid in full on the earlier of (x) the tenth Business Day following the date of the incurrence of such Swingline Loans (unless otherwise agreed by the Swingline Lender) and (y) the Swingline Expiry Date and (iii) all then outstanding Loans shall be repaid in full on the date on which the repayment of the Loans is accelerated pursuant to Section 12.
(j) If any RL Lender becomes a Defaulting Lender at any time that any Letter of Credit issued by any Issuing Lender is outstanding, the Borrower shall enter into the applicable Letter of Credit Back-Stop Arrangements with such Issuing Lender no later than 10 Business Days after the date such RL Lender becomes a Defaulting Lender.
Prices and Payment Terms A. Customer shall pay COMSTOR monthly recurring fees (the "Recurring Fees") which shall include charges for use and equipment storage in the Space (the "Collocation Fees"), as well as cross-connect fees (the "Cross-Connect Fees") and power charges (the "Power Charges"), if applicable. In addition to any Recurring Fees, Customer shall be charged non-recurring fees for build-out of the Space (the "Build-Out Charges"), including, where applicable, cross-connect installation fees and/or Dispatch Labor Charges, where applicable, all of which shall be set forth in the relevant Collocation Schedule and the Exhibits thereto. If Customer requests that COMSTOR provide services not delineated herein or in the collocation schedules at any time during the Term, such services shall be provided at prices mutually negotiated by the parties.
B. Prices do not include taxes, except as specifically stated herein. Customer agrees to pay or reimburse COMSTOR for any applicable taxes that are levied based on the transactions hereunder, exclusive of COMSTOR's income taxes and real estate taxes on the Terminal Facility. Any such charges shall be invoiced and payable within the payment terms of this Agreement. COMSTOR agrees to provide Customer with reasonable documentation to support invoiced amounts for taxes within thirty (30) calendar days of receipt of a Customer written request.
C. The Collocation Fee and/or Power Charges shall be increased by any increases or decreased by any decreases, incurred by COMSTOR and required under the lease relevant to the Premises in which the Space is located. Customer shall pay to COMSTOR its pro rata share of any such increases based on the number of square feet of the Space compared to the number of square feet leased by COMSTOR under the applicable lease. COMSTOR shall notify Customer of any such increase as soon as practicable. If such increases in the aggregate during the Term -------------------------------------------------------------------------------- 4 -------------------------------------------------------------------------------- exceed 3% then Customer shall have the right to terminate this agreement upon ninety (90) days written notice from COMSTOR, provided such notice is delivered to COMSTOR within thirty (30) days of COMSTOR's notice to Customer.
D. All Recurring Fees shall be invoiced in the beginning of each month commencing on the first day of the Term as identified in the Collocation Schedule and thereafter, on the first day of each calendar month. Charges for partial months shall be prorated accordingly. All Recurring Fees shall be payable net sixty (60) days from date of invoice. Late payments shall be subject to late charges if payment is not received within the payment term period. The late payment charges will be calculated based on 1.5% per month of the unpaid amount.
E. Customer agrees to reimburse COMSTOR for all reasonable repair or restoration costs associated with damage or destruction caused by Customer's personnel, Customer's agents, Customer's customers, or Customer's suppliers/contractors or Customer's visitors during the Term or as a consequence of Customer's removal of the Equipment or property installed in the Space.
Deliverables at Triggering Event Dates; Certificates The Company agrees that on or prior to the date of the first Issuance Notice and, during the term of this Agreement after the date of the first Issuance Notice, upon:
(A) the filing of the Prospectus or the amendment or supplement of any Registration Statement or Prospectus (other than a prospectus supplement relating solely to an offering of securities other than the Shares or a prospectus filed pursuant to Section 4(a)(ii)(B)), by means of a post-effective amendment, sticker or supplement, but not by means of incorporation of documents by reference into the Registration Statement or Prospectus;
(B) the filing with the Commission of an annual report on Form 10-K or a quarterly report on Form 10-Q (including any Form 10-K/A or Form 10-Q/A containing amended financial information or a material amendment to the previously filed annual report on Form 10-K or quarterly report on Form 10-Q), in each case, of the Company; or
(C) the filing with the Commission of a current report on Form 8-K of the Company containing amended financial information (other than information “furnished” pursuant to Item 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to reclassification of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144) that is material to the offering of securities of the Company in the Agent’s reasonable discretion; (any such event, a “Triggering Event Date”), the Company shall furnish the Agent (but in the case of clause (C) above only if the Agent reasonably determines that the information contained in such current report on Form 8-K of the Company is material) with a certificate as of the Triggering Event Date, in the form and substance satisfactory to the Agent and its counsel, substantially similar to the form previously provided to the Agent and its counsel, modified, as necessary, to relate to the Registration Statement and the Prospectus as amended or supplemented, (A) confirming that the representations and warranties of the Company contained in this Agreement are true and correct, (B) confirming that the Company has performed all of its obligations hereunder to be performed on or prior to the date of such certificate and as to the matters set forth in Section 5(a)(iii) hereof, and (C) containing any other certification that the Agent shall reasonably request. The requirement to provide a certificate under this Section 4(o) shall be waived for any Triggering Event Date occurring at a time when no Issuance Notice is pending or a suspension is in effect, which waiver shall continue until the earlier to occur of the date the Company delivers instructions for the sale of Shares hereunder (which for such calendar quarter shall be considered a Triggering Event Date) and the next occurring Triggering Event Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Triggering Event Date when a suspension was in effect and did not provide the Agent with a certificate under this Section 4(o), then before the Company delivers the instructions for the sale of Shares or the Agent sells any Shares pursuant to such instructions, the Company shall provide the Agent with a certificate in conformity with this Section 4(o) dated as of the date that the instructions for the sale of Shares are issued.