Common use of Other Mandatory Prepayments Clause in Contracts

Other Mandatory Prepayments. In addition to and without limiting any provision of any Loan Document: (a) if any Borrower sells any of its assets or properties, sells or issues any securities (debt or equity), capital stock or ownership interests, receives any capital contributions (except for the Western Issuance), receives any property damage insurance award which is not used to repair or replace the property covered thereby or incurs any Indebtedness except for Permitted Indebtedness, then it shall apply 100% of the proceeds thereof to the prepayment of the Loans together with accrued interest thereon and all other Obligations owing to Lender under the Loan Documents, such payment to be applied at such time and in such manner and order as Lender shall decide in its sole discretion; and (b) until such time as the Obligations relating to the Term Loan are indefeasibly paid in full in cash and fully performed, 100% of Borrower’s Excess Cash Flow for each fiscal year shall be paid by Borrower to Lender and shall be applied by Lender to reduce the Obligations relating to the Term Loan. Such payments shall be made no later than thirty (30) calendar days after preparation of Borrower’s audited financial statements, but in any event not later than one hundred and forty-five (145) calendar days after the end of the fiscal year to which such Excess Cash Flow relates, provided, however, that such payments are to be applied to the Obligations relating to the Term Loan at such time and in such manner and order as Lender shall decide in its sole discretion.” (c) Section 6.2 of the Loan Agreement is hereby amended by adding the following sentence immediately at the end thereof: “Simultaneously upon any prepayment of the Revolving Loan and termination of the Revolving Facility, Borrower shall make full indefeasible payment in cash of the principal of and interest on the Term Loan and all other Obligations relating to the Term Loan.” (d) Section 6.11 of the Loan Agreement is hereby amended by adding the following sentence immediately at the end of such subsection: “Borrower shall use the proceeds from the Term Loan only for the payment by Borrower to Western Seller of a portion of the purchase price for the Western Assets in accordance with the Western Purchase Agreement on the Amendment No. 2 Effective Date” (e) Section 9.1(a)(viii) of the Loan Agreement is hereby amended by adding “and/or the Maximum Loan Amount” immediately before the comma at the end of such Section. (f) Section 11.1 of the Loan Agreement is hereby amended by: (i) deleting Sections 11.1(b)(ii) and Section 11.1(b)(iii) in their entirety and replacing it with: (ii) Borrower voluntarily or involuntarily repays the Obligations relating to the Revolving Facility (other than reductions to zero of the outstanding balance of the Revolving Facility resulting from the ordinary course operation of the provisions of Section 2.5), whether by virtue of Lender’s exercising its right of set-off or otherwise, (iii) Lender accelerates the Revolving Loan or makes any demand on the Revolving Loan,”; and

Other Mandatory Prepayments. In addition (i) The Company shall prepay the Loans and the "Revolving Credit Obligations" and "Term Loans" under the 5-Year Credit Agreement in an amount equal to and without limiting any provision of any Loan Document: (a) if any Borrower sells any of its assets or properties, sells or issues any securities (debt or equity), capital stock or ownership interests, receives any capital contributions (except for the Western Issuance), receives any property damage insurance award which is not used to repair or replace the property covered thereby or incurs any Indebtedness except for Permitted Indebtedness, then it shall apply 100% of (A) the Net Proceeds realized upon any Asset Sale made by the Company or its Subsidiaries (B) any insurance proceeds thereof received by the Company or its Subsidiaries in respect of any casualty involving such Person's property and (C) any payments received by the Company or its Subsidiaries from a condemnation of such Person's property, to the prepayment extent any of the Loans together with accrued interest thereon and all other Obligations owing to Lender under the Loan Documents, such payment foregoing Net Proceeds are not applied (or committed to be applied at such time and in such manner and order as Lender shall decide in its sole discretion; and (bapplied) until such time as the Obligations relating to the Term Loan are indefeasibly paid in full in cash and fully performed, 100% of Borrower’s Excess Cash Flow for each fiscal year shall be paid by Borrower to Lender and shall be applied by Lender to reduce the Obligations relating to the Term Loan. Such payments shall be made no later than thirty (30) calendar days after preparation of Borrower’s audited financial statements, but in any event not later than within one hundred and forty-five twenty (145120) calendar days after the end consummation or receipt thereof, as applicable, to the purchase of similar assets used or useful in the business of the Company or its Subsidiaries or to the repair or restoration of the Borrowers' property. If the aggregate Net Proceeds under clause (B) during any fiscal year quarter exceed $5,000,000, the Company shall give notice of its intent to which reinvest any such Excess Cash Flow relates, provided, however, that such payments are amounts (and the amount intended to be applied reinvested) to the Obligations relating Administrative Agent upon receipt of such proceeds. Pending such reinvestment, the Company shall use such Net Proceeds to pay down the principal amount of the Revolving Loans and the Revolving Loans under the 5-Year Credit Agreement to the Term Loan at such time and in such manner and order as Lender shall decide in its sole discretion.” extent thereof (c) Section 6.2 of the Loan Agreement is hereby amended by adding the following sentence immediately at the end thereof: “Simultaneously upon any prepayment but without a permanent reduction of the Revolving Loan Commitments). If the Company does not intend to so reinvest such Net Proceeds or if the period set forth in the first sentence of this Section 2.5(C)(i) expires without the Company having reinvested such Net Proceeds, the Company shall prepay the Loans and termination the "Revolving Credit Obligations" and "Term Loans" under the 5-Year Credit Agreement (within one (1) Business Day of the Revolving Facility, Borrower shall make full indefeasible payment in cash date of receipt thereof or of the principal expiration of said one hundred and interest on the Term Loan and all other Obligations relating twenty (120) day period, as applicable) in an amount equal to the Term Loan.” (d) Section 6.11 of the Loan Agreement is hereby amended by adding the following sentence immediately at the end Net Proceeds of such Asset Disposition after giving effect to all reinvestments permitted by this subsection: “Borrower shall use the proceeds from the Term Loan only for the payment by Borrower to Western Seller of a portion of the purchase price for the Western Assets in accordance with the Western Purchase Agreement on the Amendment No. 2 Effective Date” (e) Section 9.1(a)(viii) of the Loan Agreement is hereby amended by adding “and/or the Maximum Loan Amount” immediately before the comma at the end of such Section. (f) Section 11.1 of the Loan Agreement is hereby amended by: (i) deleting Sections 11.1(b)(ii) and Section 11.1(b)(iii) in their entirety and replacing it with: (ii) Borrower voluntarily or involuntarily repays the Obligations relating to the Revolving Facility (other than reductions to zero of the outstanding balance of the Revolving Facility resulting from the ordinary course operation of the provisions of Section 2.5), whether by virtue of Lender’s exercising its right of set-off or otherwise, (iii) Lender accelerates the Revolving Loan or makes any demand on the Revolving Loan,”; and

Other Mandatory Prepayments. In addition to and without limiting any provision of any Loan Document: (a) Except as provided below, if any Borrower sells any of its assets or properties, sells or issues any securities (debt or equity), capital stock or ownership interests, receives any capital contributions (except proceeds from any tax refunds, indemnity payments or pension reversions, Borrower shall pay to Agent for the Western Issuance)ratable benefit of Lenders, as and when received by Borrower and as a mandatory prepayment of the Loans, a sum equal to the proceeds of such tax refund, indemnity payment or pension reversion so received by Borrower. The foregoing notwithstanding, if Borrower receives any property damage insurance award indemnity payment which is not used effectively reimburses Borrower for a cost or expense incurred or to repair or replace the property covered thereby or incurs any Indebtedness except for Permitted Indebtednessbe incurred by Borrower, then it shall apply 100% of the proceeds thereof of such indemnity payment paid over to Agent pursuant to the preceding sentence shall be applied against outstanding Revolving Credit Loans. (b) Borrower shall make a mandatory prepayment of the Loans together with accrued interest thereon and all in the amount of the net proceeds received by Borrower or Guarantor from any offering or sale of its debt or equity Securities (other Obligations owing to Lender under the Loan Documents, such payment to be applied at such time and in such manner and order as Lender shall decide in its sole discretion; andthan proceeds from a Qualified IPO). (bc) until such time as Borrower shall prepay the Obligations relating Loans in amounts equal to the Term Loan are indefeasibly paid in full in cash and fully performed, 100% of Borrower’s 's Excess Cash Flow for with respect to each fiscal year shall of Borrower during the Term hereof, commencing with the fiscal year ending December 31, 2006, such prepayments to be paid based upon, and made within 5 Business Days following the due date for delivery by Borrower to Lender and shall be applied by Lender to reduce the Obligations relating to the Term Loan. Such payments shall be made no later than thirty (30) calendar days after preparation of Borrower’s audited financial statements, but in any event not later than one hundred and forty-five (145) calendar days after the end Agent of the fiscal year to which annual financial statements required by subsection 8.1.3(i) hereof and each such Excess Cash Flow relates, provided, however, that such payments are to prepayment shall be applied to the Obligations relating to Loans in the Term Loan at such time and manner specified in such manner and order as Lender shall decide the second sentence of subsection 3. 3.1 until payment thereof in its sole discretionfull.” (c) Section 6.2 of the Loan Agreement is hereby amended by adding the following sentence immediately at the end thereof: “Simultaneously upon any prepayment of the Revolving Loan and termination of the Revolving Facility, Borrower shall make full indefeasible payment in cash of the principal of and interest on the Term Loan and all other Obligations relating to the Term Loan.” (d) Section 6.11 Borrower shall make a mandatory prepayment of the Loan Agreement is hereby amended by adding Loans in the following sentence immediately at amount of the end of such subsection: “Borrower shall use the net proceeds from the Term Loan only for the payment received by Borrower to Western Seller of or Guarantor from a portion of the purchase price for the Western Assets in accordance with the Western Purchase Agreement on the Amendment No. 2 Effective Date”Qualified IPO. (e) Section 9.1(a)(viiiAny applicable prepayment made pursuant to subsection 3.3.2(a), (b) of the Loan Agreement is hereby amended by adding “and/or the Maximum Loan Amount” immediately before the comma at the end of such Section. or (fc) Section 11.1 of the Loan Agreement is hereby amended by: (i) deleting Sections 11.1(b)(ii) and Section 11.1(b)(iii) in their entirety and replacing it with: (ii) Borrower voluntarily or involuntarily repays the Obligations relating above shall be applied first to the Revolving Facility (other than reductions installments of principal due under Term Notes B, pro rata, in inverse order of their maturities until paid in full, second, to zero the installments of principal due under Term Notes A, pro rata, in inverse order of their maturities until paid in full, and third, to reduce the outstanding principal balance of the Revolving Facility resulting from Credit Loans. Any applicable prepayment made pursuant to subsection 3.3.2(d) above shall be applied first to the ordinary course operation installments of principal due under Term Notes B, pro rata, in inverse order of their maturities until paid in full, and second to reduce the outstanding principal balance of the provisions of Section 2.5), whether by virtue of Lender’s exercising its right of set-off or otherwise, (iii) Lender accelerates the Revolving Loan or makes any demand on the Revolving Loan,”; andCredit Loans.

Other Mandatory Prepayments. In addition to and without limiting any provision of any Loan Document: (a) if a Change of Control occurs, on or prior to the first Business Day following the date of such Change of Control, Borrower shall prepay the Loans, including, without limitation, all outstanding Advances, the Term Loan and all other Obligations, in full in cash together with accrued interest thereon to the date of prepayment and all other amounts owing to Lender under the Loan Documents; (b) if any Borrower (i) sells any of its assets or properties, other than in the ordinary course of its business, (ii) sells or issues any securities (subordinated debt or equity), capital stock or ownership interests, receives any capital contributions (except for other than the Western Issuance)transactions set forth on Schedule 2.11, receives any property damage insurance award which is not used to repair or replace the property covered thereby or incurs any Indebtedness except for Permitted Indebtedness, then it shall apply 100% of the proceeds thereof to the prepayment of the Loans together with accrued interest thereon and all other Obligations owing to Lender under the Loan Documents, such payment to be applied at such time and in such manner and order as Lender shall decide in its sole discretion; and (bc) until such time as the Obligations relating with respect to the Term Loan are indefeasibly paid in full in cash and fully performedeach Excess Cash Flow Period, 100% Borrower shall furnish Lender with a written calculation of Borrower’s Excess Cash Flow for each fiscal year the Excess Cash Flow Period then ended, and Borrower shall be paid by Borrower pay to Lender and shall be applied by Lender to reduce the Obligations relating an amount equal to the Term LoanExcess Cash Flow Percentage multiplied by the Borrower's Excess Cash Flow for such Excess Cash Flow Period. Such payments shall be made no later than thirty fifteen (3015) calendar days after preparation the delivery to Lender of the Borrower’s audited 's financial statementsstatements for the last month of each Excess Cash Flow Period, but in any event not later than one hundred and forty-five (14545) calendar days after the end of the fiscal year to which such each Excess Cash Flow relates, Period; provided, however, that such payments are to be applied to the Obligations relating to the Term Loan at such time and in such manner and order as Lender shall decide in its sole discretion.” (c) Section 6.2 of the Loan Agreement is hereby amended by adding the following sentence immediately at the end thereof: “Simultaneously upon any prepayment of the Revolving Loan and termination of the Revolving Facility, Borrower shall make full indefeasible payment in cash of the principal of and interest on the Term Loan and all other Obligations relating to the Term Loan.” (d) Section 6.11 of the Loan Agreement is hereby amended by adding the following sentence immediately at the end of such subsection: “Borrower shall use the proceeds from the Term Loan only for the payment by Borrower to Western Seller of a portion of the purchase price for the Western Assets in accordance with the Western Purchase Agreement on the Amendment No. 2 Effective Date” (e) Section 9.1(a)(viii) of the Loan Agreement is hereby amended by adding “and/or the Maximum Loan Amount” immediately before the comma at the end of such Section. (f) Section 11.1 of the Loan Agreement is hereby amended by: (i) deleting Sections 11.1(b)(ii) and Section 11.1(b)(iii) in their entirety and replacing it with: (ii) Borrower voluntarily or involuntarily repays the Obligations relating to the Revolving Facility (other than reductions to zero of the outstanding balance of the Revolving Facility resulting from the ordinary course operation of the provisions of Section 2.5), whether by virtue of Lender’s exercising its right of set-off or otherwise, (iii) Lender accelerates the Revolving Loan or makes any demand on the Revolving Loan,”; and

Other Mandatory Prepayments. In addition (i) The Company shall prepay the Revolving Credit Obligations and Term Loans and the "Loans" under the 364-Day Credit Agreement in an amount equal to and without limiting any provision of any Loan Document: (a) if any Borrower sells any of its assets or properties, sells or issues any securities (debt or equity), capital stock or ownership interests, receives any capital contributions (except for the Western Issuance), receives any property damage insurance award which is not used to repair or replace the property covered thereby or incurs any Indebtedness except for Permitted Indebtedness, then it shall apply 100% of (A) the Net Proceeds realized upon any Asset Sale made by the Company or its Subsidiaries (B) any insurance proceeds thereof received by the Company or its Subsidiaries in respect of any casualty involving such Person's property and (C) any payments received by the Company or its Subsidiaries from a condemnation of such Person's property, to the prepayment extent any of the Loans together with accrued interest thereon and all other Obligations owing to Lender under the Loan Documents, such payment foregoing Net Proceeds are not applied (or committed to be applied at such time and in such manner and order as Lender shall decide in its sole discretion; and (bapplied) until such time as the Obligations relating to the Term Loan are indefeasibly paid in full in cash and fully performed, 100% of Borrower’s Excess Cash Flow for each fiscal year shall be paid by Borrower to Lender and shall be applied by Lender to reduce the Obligations relating to the Term Loan. Such payments shall be made no later than thirty (30) calendar days after preparation of Borrower’s audited financial statements, but in any event not later than within one hundred and forty-five twenty (145120) calendar days after the end consummation or receipt thereof, as applicable, to the purchase of similar assets used or useful in the business of the Company or its Subsidiaries or to the repair or restoration of the Borrowers' property. If the aggregate Net Proceeds under clause (B) during any fiscal year quarter exceed $5,000,000, the Company shall give notice of its intent to which reinvest any such Excess Cash Flow relates, provided, however, that such payments are amounts (and the amount intended to be applied reinvested) to the Obligations relating Administrative Agent upon receipt of such proceeds. Pending such reinvestment, the Company shall use such Net Proceeds to pay down the principal amount of the Revolving Loans and the "Loans" made under the 364-Day Credit Agreement to the Term Loan at such time and in such manner and order as Lender shall decide in its sole discretion.” extent thereof (c) Section 6.2 of the Loan Agreement is hereby amended by adding the following sentence immediately at the end thereof: “Simultaneously upon any prepayment but without a permanent reduction of the Revolving Loan Commitments). If the Company does not intend to so reinvest such Net Proceeds or if the period set forth in the first sentence of this Section 2.5(D)(i) expires without the Company having reinvested such Net Proceeds, the Company shall prepay the Revolving Credit Obligations and termination Term Loans and the "Loans" made under the 364-Day Credit Agreement (within one (1) Business Day of the Revolving Facility, Borrower shall make full indefeasible payment expiration of said one hundred and twenty (120) day period) in cash of the principal of and interest on the Term Loan and all other Obligations relating an amount equal to the Term Loan.” (d) Section 6.11 of the Loan Agreement is hereby amended by adding the following sentence immediately at the end Net Proceeds of such Asset Disposition after giving effect to all reinvestments permitted by this subsection: “Borrower shall use the proceeds from the Term Loan only for the payment by Borrower to Western Seller of a portion of the purchase price for the Western Assets in accordance with the Western Purchase Agreement on the Amendment No. 2 Effective Date” (e) Section 9.1(a)(viii) of the Loan Agreement is hereby amended by adding “and/or the Maximum Loan Amount” immediately before the comma at the end of such Section. (f) Section 11.1 of the Loan Agreement is hereby amended by: (i) deleting Sections 11.1(b)(ii) and Section 11.1(b)(iii) in their entirety and replacing it with: (ii) Borrower voluntarily If the Company or involuntarily repays the Obligations relating any Subsidiary shall issue new Equity Interests or receive any capital contributions other than Equity Interests issued to the Revolving Facility (other than reductions Company or another Subsidiary, Equity Interests issued in connection with employee stock option plans, employee stock purchase plans, 401(k) plans and directors' deferred compensation plans not to zero exceed an aggregate of 9,000,000 shares, and capital contributions received from the Company or another Subsidiary, the Company shall promptly notify the Administrative Agent of the outstanding balance estimated Net Proceeds of such issuance to be received in respect thereof. Promptly upon, and in no event later than one (1) Business Day after, receipt by the Company or such Subsidiary of Net Proceeds of such issuance, the Company shall prepay the "Revolving Facility resulting from Credit Obligations" and "Term Loans" under the ordinary course operation 5-Year Credit Agreement in the amount of the provisions of Section 2.5), whether by virtue of Lender’s exercising its right of set-off or otherwise, such Net Proceeds. (iii) Lender accelerates After the Revolving Loan payment or makes repayment in full of the Term Loan, promptly upon, and in no event later than one (1) Business Day after, the receipt by any demand on the Revolving Loan,”; andBorrower of (1)

Other Mandatory Prepayments. In addition 6.3.3.1. INSURANCE/CONDEMNATION PROCEEDS. All Insurance/Condemnation Proceeds in connection with any loss or condemnation, the proceeds of which exceed $100,000.00, shall be deposited in an interest bearing Proceeds Account with Administrative Agent in the name of Borrower promptly upon receipt thereof by Borrower or Administrative Agent. Within 180 days after such receipt Borrower may expend, or commit to and without limiting any provision expend, some or all of any Loan Document: (a) if any Borrower sells any of its assets the funds in the Proceeds Account for rebuilding, repairing or properties, sells or issues any securities (debt or equity), capital stock or ownership interests, receives any capital contributions (except for the Western Issuance), receives any property damage insurance award which is not used to repair or replace replacing the property covered thereby or incurs any Indebtedness except for Permitted Indebtedness, then it which such Insurance/Condemnation Proceeds were paid. All funds in the Proceeds Account that have not been committed to be so expended by the 180th day after receipt shall apply 100% be distributed by Administrative Agent to Lenders in accordance with their pro-rata shares of the proceeds thereof to the prepayment of the Loans together with accrued interest thereon and all other Obligations owing to Lender under the Loan Documents, such payment to be applied at such time and in such manner and order as Lender shall decide in its sole discretion; and (b) until such time as the Obligations relating to the Aggregate Term Loan are indefeasibly paid in full in cash Commitment and fully performed, 100% of Borrower’s Excess Cash Flow for each fiscal year shall be paid by Borrower to Lender and shall be applied by Lender them to reduce the Obligations relating Aggregate Term Loan, and all funds remaining in the Proceeds Account upon completion of such rebuilding, repairing or replacement shall be distributed by Administrative Agent to Lenders in accordance with their pro-rata shares of the Aggregate Term Loan Commitment and applied by them to reduce the Aggregate Term Loan. Such payments The foregoing notwithstanding, Administrative Agent shall be made no later than thirty (30) calendar days after preparation of Borrower’s audited financial statementshave the right to debit the Proceeds Account in the amount of, but in and apply the debit amount to pay, any event not later than one hundred and forty-five (145) calendar days after the end of the fiscal year to which such Excess Cash Flow relates, provided, however, that such payments are to be applied to the Obligations relating to the Term Loan at such time and in such manner and order as Lender shall decide in its sole discretion.” (c) Section 6.2 of the Loan Agreement is Obligations that are not paid when due as provided herein or at any time upon the occurrence and during the continuation of an Event of Default. Borrower hereby amended by adding assigns and grants to Administrative Agent for the following sentence immediately at the end thereof: “Simultaneously upon benefit of Lenders a first priority Security Interest in any prepayment of the Revolving Loan such Proceeds Account as security for payment and termination of the Revolving Facility, Borrower shall make full indefeasible payment in cash of the principal of and interest on the Term Loan and all other Obligations relating to the Term Loan.” (d) Section 6.11 performance of the Loan Agreement Obligations. Expenditures by Borrower for such rebuilding, repairing or replacement in excess of the amount of the Insurance/Condemnation Proceeds shall be deemed Capital Expenditures. Administrative Agent is hereby amended by adding the following sentence immediately at the end of such subsection: “Borrower shall use the proceeds from the Term Loan only authorized to participate in any proceeding for the payment condemnation or other taking of any of Borrower's property and Borrower from time to time will deliver to Administrative Agent all instruments reasonably requested by Borrower Administrative Agent to Western Seller of a portion of the purchase price for the Western Assets in accordance with the Western Purchase Agreement on the Amendment No. 2 Effective Date” (e) Section 9.1(a)(viii) of the Loan Agreement is hereby amended by adding “and/or the Maximum Loan Amount” immediately before the comma at the end of permit such Sectionparticipation. (f) Section 11.1 of the Loan Agreement is hereby amended by: (i) deleting Sections 11.1(b)(ii) and Section 11.1(b)(iii) in their entirety and replacing it with: (ii) Borrower voluntarily or involuntarily repays the Obligations relating to the Revolving Facility (other than reductions to zero of the outstanding balance of the Revolving Facility resulting from the ordinary course operation of the provisions of Section 2.5), whether by virtue of Lender’s exercising its right of set-off or otherwise, (iii) Lender accelerates the Revolving Loan or makes any demand on the Revolving Loan,”; and