Application of Awards. Awards and other payments on account of a taking (less costs, fees and expenses incurred by District, and Lessee in connection with the collection thereof) shall be applied as follows: 1. Net awards and payments received on account of taking, other than (a) a taking for temporary use, (b) a taking of only the leasehold estate hereunder, or (c) a total taking, shall be held and applied to pay the cost of restoration of the Premises. The balance, if any, remaining after restoration shall be divided between District and Lessee as they may agree and, in the absence of such Agreement, such balance shall be paid to District and Lessee in the ratio, as nearly as practicable, which (a) the sum of (1) the then fair market value of District's reversionary interest in the improvements and (2) the fair market value of the land, valued as unencumbered by this Agreement, unimproved and to be used for the uses specified in this Agreement bears to (b) the then fair market value of Lessee’s interest in the improvements for the remainder of the term of this Agreement, provided, however, that Lessee’s share of any such balance shall be applied first to any payment of any past due Base Rent, Percentage Rent or any other payment payable hereunder, including, without limitation, any past due tax payments. 2. Net awards and payment received on account of (a) a taking for temporary use or (b) a taking of only the leasehold estate created by this Agreement shall be paid to Lessee, except that: a. If any portion of any such award or payment is made by reason of any damage to or destruction of the Premises, and there exists in this agreement on obligations to restore said Premises, such portion shall be held and applied to pay the cost of restoration thereof; and b. If any portion of any award or payment on account of a taking for temporary use relates to a period beyond the date of termination of this Agreement term, such portion shall be paid to District; and c. If, at any time such award becomes payable to Lessee, any Base Rent, Percentage Rent or other payments payable hereunder (including, without limitation, any tax payments) shall be due and unpaid, such award shall be first applied to the payment thereof. 3. With the exception of payments to Lessee for loss of business goodwill, any award and payment received on account of a total taking shall be paid to the District, including any and all payments for leasehold bonus value, fixtures and equipment (other than trade fixtures) and severance damages.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
Application of Awards. Lender shall have the right to apply any Awards and other payments on account of a taking (less costs, fees and expenses incurred by District, and Lessee in connection with the collection thereof) shall be applied as follows:
1. Net awards : first, to reimburse Lender for all actual out-of-pocket costs and payments received on account of taking, other than (a) a taking for temporary use, (b) a taking of only the leasehold estate hereunder, or (c) a total taking, shall be held and applied to pay the cost of restoration of the Premises. The balance, if any, remaining after restoration shall be divided between District and Lessee as they may agree and, in the absence of such Agreement, such balance shall be paid to District and Lessee in the ratio, as nearly as practicable, which (a) the sum of (1) the then fair market value of District's reversionary interest in the improvements and (2) the fair market value of the land, valued as unencumbered by this Agreement, unimproved and to be used for the uses specified in this Agreement bears to (b) the then fair market value of Lessee’s interest in the improvements for the remainder of the term of this Agreement, provided, however, that Lessee’s share of any such balance shall be applied first to any payment of any past due Base Rent, Percentage Rent or any other payment payable hereunderexpenses, including, without limitation, reasonable attorney’s fees incurred in connection with such Taking, and, second, at Lender’s option, (i) in payment of all or any past due tax payments.
2part of the Indebtedness, at Par (so long as no Event of Default then exists), in the order and manner determined by Lender (provided that to the extent that any Indebtedness shall remain outstanding after such application, such unpaid Indebtedness shall continue in full force and effect and Borrower shall not be excused in the payment thereof); (ii) to the cure of any default hereunder; or (iii) to the Restoration, in whole or in part, of the portion of the Property remaining after the Taking; provided, however, Lender shall hold said Awards without any allowance of interest, and make the same available to restore, replace and rebuild the Property, as nearly as possible to its value, condition and character immediately prior to the Taking if such Taking does not result in the following, as determined by Lender, in Lender’s discretion: (A) a Material Adverse Change, (B) a violation of any Laws (including any zoning ordinances), or (C) a default under any Lease. Net awards In the event that Lender elects to make the Awards available to reimburse Borrower for the cost of the Restoration of the Improvements on the Real Property, such proceeds shall be made available in the manner and under the same conditions as required under Section 6.3(b). In the event Lender applies such Awards to the reduction of the outstanding Loan or if any surplus remains out of the Award after payment received of such cost of Restoration, such amounts shall be applied on account of the Loan at Par, so long as no Event of Default then exists (a) notwithstanding the fact that the amount owing thereon may not then be due and payable or that the Loan may otherwise be adequately secured). If the Taking results in a taking for temporary use or (b) a taking of only the leasehold estate created Material Adverse Change, as determined by this Agreement shall be paid to Lessee, except that:
a. If any portion of any such award or payment is made by reason of any damage to or destruction of the PremisesLender, and there exists in this agreement on obligations Lender elects to restore said Premises, apply the Awards to the Indebtedness and such portion shall be held and applied proceeds are insufficient to pay the cost Indebtedness in full Lender may declare the remaining unpaid Indebtedness to be immediately due and payable in full, at Par. Borrower’s failure to timely commence Restoration following a Taking and diligently pursue the completion thereof, subject to the terms hereof, will constitute an Event of restoration thereof; and
b. If any portion Default under the Loan Documents. Furthermore, Borrower’s misappropriation of any award or payment on account the Award received directly from the condemning authority in violation of a taking for temporary use relates Section 6.4(b) above shall trigger recourse liability pursuant to a period beyond the date of termination Section 10.1(c) of this Agreement term, such portion shall be paid to District; and
c. If, at any time such award becomes payable to Lessee, any Base Rent, Percentage Rent or other payments payable hereunder (including, without limitation, any tax payments) shall be due and unpaid, such award shall be first applied to the payment thereofAgreement.
3. With the exception of payments to Lessee for loss of business goodwill, any award and payment received on account of a total taking shall be paid to the District, including any and all payments for leasehold bonus value, fixtures and equipment (other than trade fixtures) and severance damages.
Appears in 1 contract
Application of Awards. Lender shall have the right to apply any Awards and other payments on account of a taking (less costs, fees and expenses incurred by District, and Lessee in connection with the collection thereof) shall be applied as follows:
1. Net awards : first, to reimburse Lender for all costs and payments received on account of taking, other than (a) a taking for temporary use, (b) a taking of only the leasehold estate hereunder, or (c) a total taking, shall be held and applied to pay the cost of restoration of the Premises. The balance, if any, remaining after restoration shall be divided between District and Lessee as they may agree and, in the absence of such Agreement, such balance shall be paid to District and Lessee in the ratio, as nearly as practicable, which (a) the sum of (1) the then fair market value of District's reversionary interest in the improvements and (2) the fair market value of the land, valued as unencumbered by this Agreement, unimproved and to be used for the uses specified in this Agreement bears to (b) the then fair market value of Lessee’s interest in the improvements for the remainder of the term of this Agreement, provided, however, that Lessee’s share of any such balance shall be applied first to any payment of any past due Base Rent, Percentage Rent or any other payment payable hereunderexpenses, including, without limitation, reasonable attorney’s fees incurred in connection with such Taking, and, second, at Lender’s option, (A) in payment of all or any past due tax payments.
2part of the Indebtedness, at Par (so long as no Event of Default then exists), in the order and manner determined by Lender (provided that to the extent that any Indebtedness shall remain outstanding after such application, such unpaid Indebtedness shall continue in full force and effect and Borrower shall not be excused in the payment thereof); (B) to the cure of any default hereunder; or (C) to the Restoration, in whole or in part, of the portion of the Property remaining after the Taking; provided, however, Lender shall hold said Awards without any allowance of interest, and make the same available to restore, replace and rebuild the Property, as nearly as possible to its value, condition and character immediately prior to the Taking if such Taking does not result in the following, as determined by Lender in its good faith discretion: (i) a Material Adverse Change, (ii) a violation of any Laws (including any zoning ordinances), or (iii) a default under any Lease. Net awards In the event that Lender elects to make the Awards available to reimburse Borrower for the cost of the Restoration of the Improvements on the Real Property, such proceeds shall be made available in the manner and under the same conditions as required under Section 6.3(b). In the event Lender applies such Awards to the reduction of the outstanding Loan or if any surplus remains out of the Award after payment received of such cost of Restoration, such amounts shall be applied on account of the Loan at Par, so long as no Event of Default then exists (a) notwithstanding the fact that the amount owing thereon may not then be due and payable or that the Loan may otherwise be adequately secured). If the Taking results in a taking for temporary use or (b) a taking of only the leasehold estate created Material Adverse Change, as determined by this Agreement shall be paid to Lessee, except that:
a. If any portion of any such award or payment is made by reason of any damage to or destruction of the PremisesLender, and there exists in this agreement on obligations Lender elects to restore said Premises, apply the Awards to the Indebtedness and such portion shall be held and applied proceeds are insufficient to pay the cost Indebtedness in full and subject to Borrower’s right to pay the remainder of restoration thereof; and
b. If any portion the Indebtedness at Par pursuant to Section 6.2, Lender may declare the remaining unpaid Indebtedness to be due and payable forthwith and to avail itself of any award of the remedies afforded thereby as in the case of any Event of Default. If Lender applies any Award to the Indebtedness, pursuant to this Section 6.4, then Borrower shall have the option to prepay the remaining outstanding principal balance of the Loan, at Par, provided that: (i) no Event of Default then exists under the Loan or payment on account the Loan Documents, (ii) Borrower delivers to Lender Notice of a taking for temporary use relates such intent to a period beyond prepay the Loan within thirty (30) days following the date of termination Lender’s application of this Agreement term, such portion shall be paid to District; and
c. If, at any time such award becomes payable to Lessee, any Base Rent, Percentage Rent or other payments payable hereunder (including, without limitation, any tax payments) shall be due and unpaid, such award shall be first applied the Awards to the payment thereofIndebtedness, and (iii) Borrower repays the Indebtedness to Lender within ninety (90) days following the date on which Borrower delivers to Lender Notice of its intent to prepay under subsection (ii) above.
3. With the exception of payments to Lessee for loss of business goodwill, any award and payment received on account of a total taking shall be paid to the District, including any and all payments for leasehold bonus value, fixtures and equipment (other than trade fixtures) and severance damages.
Appears in 1 contract
Samples: Loan Agreement (Strategic Student & Senior Housing Trust, Inc.)
Application of Awards. Lender shall have the right to apply any Awards and other payments on account of a taking (less costs, fees and expenses incurred by District, and Lessee in connection with the collection thereof) shall be applied as follows:
1. Net awards : first, to reimburse Lender for all costs and payments received on account of taking, other than (a) a taking for temporary use, (b) a taking of only the leasehold estate hereunder, or (c) a total taking, shall be held and applied to pay the cost of restoration of the Premises. The balance, if any, remaining after restoration shall be divided between District and Lessee as they may agree and, in the absence of such Agreement, such balance shall be paid to District and Lessee in the ratio, as nearly as practicable, which (a) the sum of (1) the then fair market value of District's reversionary interest in the improvements and (2) the fair market value of the land, valued as unencumbered by this Agreement, unimproved and to be used for the uses specified in this Agreement bears to (b) the then fair market value of Lessee’s interest in the improvements for the remainder of the term of this Agreement, provided, however, that Lessee’s share of any such balance shall be applied first to any payment of any past due Base Rent, Percentage Rent or any other payment payable hereunderexpenses, including, without limitation, reasonable attorney’s fees incurred in connection with such Taking, and, second, at Lender’s option, (i) in payment of all or any past due tax payments.
2part of the Indebtedness, at Par (so long as no Event of Default then exists), in the order and manner determined by Lender (provided that to the extent that any Indebtedness shall remain outstanding after such application, such unpaid Indebtedness shall continue in full force and effect and Borrower shall not be excused in the payment thereof); (ii) to the cure of any default hereunder; or (iii) to the Restoration, in whole or in part, of the portion of the Property remaining after the Taking; provided, however, Lender shall hold said Awards without any allowance of interest, and make the same available to restore, replace and rebuild the Property, as nearly as possible to its value, condition and character immediately prior to the Taking if such Taking does not result in the following, as determined by Lender, in Lender’s discretion: (A) a Material Adverse Change, (B) a violation of any Laws (including any zoning ordinances), or (C) a default under any Lease. Net awards In the event that Lender elects to make the Awards available to reimburse Borrower for the cost of the Restoration of the Improvements on the Real Property, such proceeds shall be made available in the manner and under the same conditions as required under Section 6.3(b). In the event Lender applies such Awards to the reduction of the outstanding Loan or if any surplus remains out of the Award after payment received of such cost of Restoration, such amounts shall be applied on account of the Loan at Par, so long as no Event of Default then exists (a) notwithstanding the fact that the amount owing thereon may not then be due and payable or that the Loan may otherwise be adequately secured). If the Taking results in a taking for temporary use or (b) a taking of only the leasehold estate created Material Adverse Change, as determined by this Agreement shall be paid to Lessee, except that:
a. If any portion of any such award or payment is made by reason of any damage to or destruction of the PremisesLender, and there exists in this agreement on obligations Lender elects to restore said Premises, apply the Awards to the Indebtedness and such portion shall be held and applied proceeds are insufficient to pay the cost Indebtedness in full and subject to Borrower’s right to pay the remainder of restoration Providence Square 39 Loan No. 00-1103028 4813-0380-2520, v. 3 the Indebtedness at Par pursuant to Section 6.3(a)(iv), Lender may declare the remaining unpaid Indebtedness to be immediately due and payable in full, at Par. Borrower’s failure to timely commence Restoration following a Taking and diligently pursue the completion thereof; and
b. If any portion , subject to the terms hereof, will constitute an Event of any award Default under the Loan Documents. Furthermore, Borrower’s failure to use the Award received directly from the condemning authority to rebuild and restore or payment on account of a taking for temporary use relates pay down the indebtedness pursuant to a period beyond the date of termination Section 6.4(b) above shall trigger recourse liability pursuant to Section 10.1(c) of this Agreement term, such portion shall be paid to District; and
c. If, at any time such award becomes payable to Lessee, any Base Rent, Percentage Rent or other payments payable hereunder (including, without limitation, any tax payments) shall be due and unpaid, such award shall be first applied to the payment thereofAgreement.
3. With the exception of payments to Lessee for loss of business goodwill, any award and payment received on account of a total taking shall be paid to the District, including any and all payments for leasehold bonus value, fixtures and equipment (other than trade fixtures) and severance damages.
Appears in 1 contract
Application of Awards. Awards and other payments on account of a taking of the Premises or the Improvements thereon (less costs, fees fees, and expenses incurred by DistrictCity, and Lessee District in connection with the collection thereof) shall be applied as follows:
1. (a) Net awards and payments received on account of a taking, other than (a) a taking for temporary useuse not exceeding one (1) year, (b) a taking of only the leasehold estate hereunder, or (c) a total taking, shall be allocated and paid in the following order of priority:
(1) First, to pay the cost of restoration of the Premises and the improvements thereon; provided, however, that the extent of District's obligation to restore the Premises and the improvements thereon shall be limited to the amount of the net award and payment received on account of the taking. District shall furnish to City evidence reasonably satisfactory to City of the total cost of the restoration of the Premises and the improvements thereon.
(2) Second, to District, in an amount equal to any expenses for the maintenance and operation of the Improvements which have accrued between the date that District loses possession pursuant to the partial taking and the date of the award, during the then current fiscal year up to the date of such partial taking, and which expenses are allocable to and remain payable with respect to the Premises and the improvements thereon which were taken by such partial taking, less net awards and payments pursuant to such taking received on account of such expenses, and less amounts compensated by business interruption or other insurance.
(3) Third, the balance to City.
(b) Net awards and payments received on account of a taking for temporary use not exceeding one (1) year and relating to a period during the term of this Agreement shall be paid to 50% to City and 50% to District; provided, however, that if such taking for temporary use has resulted in any damage to or destruction of the Premises or the improvements thereon, such net awards and payments shall be first held and applied to pay the cost of restoration of the Premises. The balance, if any, remaining after restoration shall be divided between District and Lessee as they may agree and, in the absence of such Agreement, such balance shall be paid to District and Lessee in the ratio, as nearly as practicable, which (a) the sum of (1) the then fair market value of District's reversionary interest in the improvements and (2) the fair market value of the land, valued as unencumbered by this Agreement, unimproved and to be used for the uses specified in this Agreement bears to (b) the then fair market value of Lessee’s interest in the improvements for the remainder of the term of this Agreement, provided, however, that Lessee’s share of any such balance shall be applied first to any payment of any past due Base Rent, Percentage Rent or any other payment payable hereunder, including, without limitation, any past due tax payments.
2thereof. Net awards and payment payments received on account of (a) a taking for temporary use or not exceeding one (b1) year and relating to a period beyond the term of this Agreement shall be paid to City.
(c) Net awards and payments received on account of a taking of only the leasehold estate created by this Agreement shall be paid to Lessee, except that:
a. If any portion of any such award or payment is made by reason of any damage 50% to or destruction of the Premises, District and there exists in this agreement on obligations 50% to restore said Premises, such portion shall be held and applied to pay the cost of restoration thereof; and
b. If any portion of any award or payment on account of a taking for temporary use relates to a period beyond the date of termination of this Agreement term, such portion shall be paid to District; and
c. If, at any time such award becomes payable to Lessee, any Base Rent, Percentage Rent or other payments payable hereunder (including, without limitation, any tax payments) shall be due and unpaid, such award shall be first applied to the payment thereofCity.
3. With the exception of (d) Net awards and payments to Lessee for loss of business goodwill, any award and payment received on account of a total taking shall be allocated and paid in the following order of priority:
(1) First, at the option of City, in any amount necessary to raze remaining improvements, clear the Premises and make it safe.
(2) Second, to reimburse District in an amount equal to any expenses for the maintenance and operation of the Improvements which have accrued between the date that District loses possession pursuant to the total taking and the date of the award and remain payable with respect to the Premises and the improvements thereon, less net awards and payments pursuant to such taking received on account of such expenses, and less amounts compensated by business interruption or other insurance.
(3) Third, to City and District, including any in the ratio as nearly as practicable which represents each Party’s capital investment in the AWTF and all payments for leasehold bonus valueRelated Facilities, fixtures and equipment to the extent that the award does not exceed the fair market value of the Improvements, as of the date of the total taking.
(other than trade fixtures4) and severance damagesFourth, the balance, if any, to City.
Appears in 1 contract
Application of Awards. Lender shall have the right to apply any Awards and other payments on account of a taking (less costs, fees and expenses incurred by District, and Lessee in connection with the collection thereof) shall be applied as follows:
1. Net awards : first, to reimburse Lender for all costs and payments received on account of taking, other than (a) a taking for temporary use, (b) a taking of only the leasehold estate hereunder, or (c) a total taking, shall be held and applied to pay the cost of restoration of the Premises. The balance, if any, remaining after restoration shall be divided between District and Lessee as they may agree and, in the absence of such Agreement, such balance shall be paid to District and Lessee in the ratio, as nearly as practicable, which (a) the sum of (1) the then fair market value of District's reversionary interest in the improvements and (2) the fair market value of the land, valued as unencumbered by this Agreement, unimproved and to be used for the uses specified in this Agreement bears to (b) the then fair market value of Lessee’s interest in the improvements for the remainder of the term of this Agreement, provided, however, that Lessee’s share of any such balance shall be applied first to any payment of any past due Base Rent, Percentage Rent or any other payment payable hereunderexpenses, including, without limitation, reasonable attorney’s fees incurred in connection with such Taking, and, second, at Xxxxxx’s option, (i) in payment of all or any past due tax payments.
2part of the Indebtedness, at Par (so long as no Event of Default then exists), in the order and manner determined by Xxxxxx (provided that to the extent that any Indebtedness shall remain outstanding after such application, such unpaid Indebtedness shall continue in full force and effect and Borrower shall not be excused in the payment thereof); (ii) to the cure of any default hereunder; or (iii) to the Restoration, in whole or in part, of the portion of the Property remaining after the Taking; provided, however, Xxxxxx shall hold said Awards without any allowance of interest, and make the same available to restore, replace and rebuild the Property, as nearly as possible to its value, condition and character immediately prior to the Taking if such Taking does not result in the following, as determined by Xxxxxx, in Xxxxxx’s discretion: (A) a Material Adverse Change, (B) a violation of any Laws (including any zoning ordinances), or (C) a default under any Lease as determined by Lender in its discretion. Net awards In the event that Xxxxxx elects to make the Awards available to reimburse Borrower for the cost of the Restoration of the Improvements on the Real Property, such proceeds shall be made available in the manner and under the same conditions as required under Section 6.3(b). In the event Lender applies such Awards to the reduction of the outstanding Loan or if any surplus remains out of the Award after payment received of such cost of Restoration, such amounts shall be applied on account of the Loan at Par, so long as no Event of Default then exists (a) a taking for temporary use or (b) a taking of only notwithstanding the leasehold estate created by this Agreement shall be paid to Lessee, except that:
a. If any portion of any such award or payment is made by reason of any damage to or destruction of fact that the Premises, and there exists in this agreement on obligations to restore said Premises, such portion shall be held and applied to pay the cost of restoration thereof; and
b. If any portion of any award or payment on account of a taking for temporary use relates to a period beyond the date of termination of this Agreement term, such portion shall be paid to District; and
c. If, at any time such award becomes payable to Lessee, any Base Rent, Percentage Rent or other payments payable hereunder (including, without limitation, any tax payments) shall amount owing thereon may not then be due and unpaidpayable or that the Loan may otherwise be adequately secured). If the Taking results in a Material Adverse Change, such award shall be first applied as determined by Xxxxxx, and Xxxxxx elects to apply the Awards to the payment thereof.
3. With Indebtedness and such proceeds are insufficient to pay in full the exception of payments to Lessee for loss of business goodwill, any award and payment received on account of a total taking shall be paid Indebtedness allocated to the DistrictIndividual Property subject to the Taking (as such allocation, including any as of the Closing Date, is set forth on Schedule I) in full Lender may declare the remaining unpaid Indebtedness to be immediately due and all payments for leasehold bonus valuepayable in full, fixtures at Par (so long as no Event of Default exists). Notwithstanding the foregoing, if the Individual Property suffering the Taking is Las Colinas Village, Xxxxxx shall declare only the Indebtedness allocated to Las Colinas Village immediately due and equipment (other than trade fixturespayable in full. Xxxxxxxx’s failure to timely commence Restoration following a Taking and diligently pursue the completion thereof, subject to the terms hereof, will constitute an Event of Default under the Loan Documents. Furthermore, Xxxxxxxx’s failure to use the Award received directly from the condemning authority to rebuild and restore or pay down the Indebtedness pursuant to Section 6.4(b) and severance damagesabove shall trigger recourse liability pursuant to Section 10.1(c) of this Agreement.
Appears in 1 contract
Samples: Loan Agreement (Whitestone REIT)
Application of Awards. Awards and other payments on account of a taking (less costs, fees and expenses incurred by District, and Lessee in connection with the collection thereof) shall be applied as follows:
1. Net awards and payments received on account of taking, other than (a) Any awards or payments made with respect to any Taking relating to a taking for temporary use, (b) a taking of only the leasehold estate hereunder, or (c) a total taking, shall be held and applied to pay the cost of restoration of the Premises. The balance, if any, remaining after restoration shall be divided between District and Lessee as they may agree and, in the absence of such Agreement, such balance Significant Real Estate Interest shall be paid to District and Lessee in the ratio, or distributed as nearly as practicable, which (a) the sum of (1) the then fair market value of District's reversionary interest in the improvements and (2) the fair market value of the land, valued as unencumbered by this Agreement, unimproved and to be used for the uses specified provided in this Agreement bears Section. If any Obligor shall receive directly any such award or payment, promptly following the receipt thereof such Obligor shall transfer in immediately available funds the Net Proceeds in respect of such Taking from such award or payment to (b) the then fair market value of Lessee’s interest Collateral Agent and the Collateral Agent shall distribute such Net Proceeds in accordance with the improvements for the remainder of the term provisions of this Agreement, provided, however, that Lessee’s share of any such balance Section 10.2(a). If the Collateral Agent shall be applied first to any payment of any past due Base Rent, Percentage Rent or any other payment payable hereunder, including, without limitation, any past due tax payments.
2. Net awards and payment received on account of (a) a taking for temporary use or (b) a taking of only the leasehold estate created by this Agreement shall be paid to Lessee, except that:
a. If any portion of receive directly any such award or payment is made and no Default or Event of Default then exists, the Collateral Agent shall, prior to making any other payment or distribution hereunder, transfer to the Obligor whose Property was the subject of such Taking an amount in immediately available funds equal to the difference between (a) the amount of such award or payment so received and (b) the Net Proceeds relating thereto (as set forth in a certificate executed by reason a Senior Officer and delivered to the Collateral Agent), and thereafter the remainder of such award or payment shall be distributed as provided below. Any and all amounts to be distributed as provided in this clause (a) shall be distributed as follows:
(i) if the gross amount of any damage awards or payments with respect to or destruction of such Taking are in an amount less than $5,000,000, the Premises, and there exists in this agreement on obligations to restore said Premises, such portion Net Proceeds thereof held by the Collateral Agent shall be held immediately payable in immediately available funds directly to such Obligor which is the subject of such Taking upon receipt of a certificate executed by a Senior Officer which states that no Default or Event of Default exists and applied such Obligor will use such Net Proceeds to pay repair or replace the cost Significant Real Estate Interest which was the subject of restoration thereofsuch Taking; and
b. If any portion (ii) if the gross amount of any award awards or payment on account payments with respect to such Taking equals or exceeds $5,000,000, the Secured Parties shall review with the Company, the Company’s business proposal with respect to the application of a taking for temporary use relates the Net Proceeds thereof held by the Collateral Agent, which proposal the Company shall submit to a period beyond the date of termination of this Agreement term, such portion shall be paid to District; and
c. If, Secured Parties at any time but no later than thirty (30) Business Days after the date such award becomes payable has been paid, and give due consideration to Lesseethe merits and rationale of such proposal recognizing the integrated nature of the Company’s manufacturing facilities and operations. Within twenty (20) Business Days of receipt of the Company’s proposal, the Requisite Parties shall, following review thereof, determine (which determination shall be reasonably made and not unduly delayed) whether such Net Proceeds shall be applied as provided in such proposal. If the Company shall not have received a reply from the Requisite Parties by the end of such twenty (20) Business Day period, the Company shall deliver a written notice to each of the Secured Parties requesting a determination as to such proposal and shall give the Requisite Parties an additional five (5) Business Days after the delivery of such second notice to deliver a written acceptance or rejection of such proposal. If the Requisite Parties fail to advise the Company in writing of their determination with respect to such proposal as provided herein prior to the end of such five (5) Business Day period, they shall be deemed to have accepted such proposal. Upon actual or deemed acceptance of such proposal, the Collateral Agent shall promptly transfer in immediately available funds such Net Proceeds to the relevant Obligor and the relevant Obligor shall act diligently and good faith to apply such Net Proceeds substantially as provided in such proposal. If such proposal is not accepted, then the Net Proceeds shall be applied as an Offered Repayment as set forth in Section 10.4 below.
(b) Notwithstanding anything contained herein, if any Default or Event of Default shall have occurred and be continuing, any Base RentNet Proceeds of a Taking, Percentage Rent or together with any other payments payable hereunder (includingamounts held by the Collateral Agent in respect of such Taking, without limitation, any tax payments) shall be due applied as an Offered Repayment as set forth in Section 10.4 below unless the Majority Secured Parties and unpaidthe Company agree otherwise. The Collateral Agent shall promptly and, such award shall be first applied in any case, not more than five (5) Business Days after the receipt of any funds hereunder satisfactorily identified to the payment Collateral Agent as Net Proceeds of a Taking, inform the Obligors and the Secured Parties in writing of such receipt and the amount thereof.
3. With the exception of payments to Lessee for loss of business goodwill, any award and payment received on account of a total taking shall be paid to the District, including any and all payments for leasehold bonus value, fixtures and equipment (other than trade fixtures) and severance damages.
Appears in 1 contract
Samples: Collateral Agency and Intercreditor Agreement (Castle a M & Co)
Application of Awards. Lender shall have the right to apply any Awards and other payments on account of a taking (less costs, fees and expenses incurred by District, and Lessee in connection with the collection thereof) shall be applied as follows:
1. Net awards : first, to reimburse Lender for all costs and payments received on account of taking, other than (a) a taking for temporary use, (b) a taking of only the leasehold estate hereunder, or (c) a total taking, shall be held and applied to pay the cost of restoration of the Premises. The balance, if any, remaining after restoration shall be divided between District and Lessee as they may agree and, in the absence of such Agreement, such balance shall be paid to District and Lessee in the ratio, as nearly as practicable, which (a) the sum of (1) the then fair market value of District's reversionary interest in the improvements and (2) the fair market value of the land, valued as unencumbered by this Agreement, unimproved and to be used for the uses specified in this Agreement bears to (b) the then fair market value of Lessee’s interest in the improvements for the remainder of the term of this Agreement, provided, however, that Lessee’s share of any such balance shall be applied first to any payment of any past due Base Rent, Percentage Rent or any other payment payable hereunderexpenses, including, without limitation, reasonable attorney’s fees incurred in connection with such Taking, and, second, at Xxxxxx’s option, (i) in payment of all or any past due tax payments.
2part of the Indebtedness, at Par (so long as no Event of Default then exists), in the order and manner determined by Xxxxxx (provided that to the extent that any Indebtedness shall remain outstanding after such application, such unpaid Indebtedness shall continue in full force and effect and Borrower shall not be excused in the payment thereof); (ii) to the cure of any default hereunder; or (iii) to the Restoration, in whole or in part, of the portion of the Property remaining after the Taking; provided, however, Xxxxxx shall hold said Awards without any allowance of interest, and make the same available to restore, replace and rebuild the Property, as nearly as possible to its value, condition and character immediately prior to the Taking if such Taking does not result in the following, as determined by Xxxxxx, in Xxxxxx’s discretion: (A) a Material Adverse Change, (B) a violation of any Laws (including any zoning ordinances), or (C) a default under any Lease as determined by Lender in its discretion. Net awards In the event that Xxxxxx elects to make the Awards available to reimburse Borrower for the cost of the Restoration of the Improvements on the Real Property, such proceeds shall be made available in the manner and under the same conditions as required under Section 6.3(b). In the event Lender applies such Awards to the reduction of the outstanding Loan or if any surplus remains out of the Award after payment received of such cost of Restoration, such amounts shall be applied on account of the Loan at Par, so long as no Event of Default then exists (a) notwithstanding the fact that the amount owing thereon may not then be due and payable or that the Loan may otherwise be adequately secured). If the Taking results in a taking for temporary use or (b) a taking of only the leasehold estate created Material Adverse Change, as determined by this Agreement shall be paid to Lessee, except that:
a. If any portion of any such award or payment is made by reason of any damage to or destruction of the PremisesXxxxxx, and there exists in this agreement on obligations Lender elects to restore said Premises, apply the Awards to the Indebtedness and such portion shall be held and applied proceeds are insufficient to pay the cost Indebtedness in full and subject to Xxxxxxxx’s right to repay the remainder of restoration thereofthe Indebtedness at Par pursuant to this Section 6.4(c), Xxxxxx may declare the remaining unpaid Indebtedness to be immediately due and payable in full, at Par (so long as no Event of Default exists); and
b. If any portion provided, however, if (A) no Event of any award Default then exists under the Loan or payment on account the Loan Documents, (B) Borrower delivers to Lender Notice of a taking for temporary use relates such intent to a period beyond prepay the Loan within five (5) days following the date of termination Xxxxxx’s application of the Award to Flats at Carrs Hill 36 Loan No. 00-1103560 30367245 the Indebtedness, Xxxxxx shall refrain from accelerating the Loan for a period of ninety (90) days from Xxxxxx’s receipt of such Notice. Xxxxxxxx’s failure to timely commence Restoration following a Taking and diligently pursue the completion thereof, subject to the terms hereof, will constitute an Event of Default under the Loan Documents. Furthermore, Xxxxxxxx’s failure to use the Award received directly from the condemning authority to rebuild and restore or pay down the Indebtedness pursuant to Section 6.4(b) above shall trigger recourse liability pursuant to Section 10.1(c) of this Agreement term, such portion shall be paid to District; and
c. If, at any time such award becomes payable to Lessee, any Base Rent, Percentage Rent or other payments payable hereunder (including, without limitation, any tax payments) shall be due and unpaid, such award shall be first applied to the payment thereofAgreement.
3. With the exception of payments to Lessee for loss of business goodwill, any award and payment received on account of a total taking shall be paid to the District, including any and all payments for leasehold bonus value, fixtures and equipment (other than trade fixtures) and severance damages.
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Application of Awards. Awards and other payments on account of a taking (less costs, fees and expenses incurred by District, and Lessee in connection with the collection thereof) shall be applied as follows:
1. Net awards and payments received on account of taking, other than (a) Any awards or payments made with respect to any Taking relating to a taking for temporary use, (b) a taking of only the leasehold estate hereunder, or (c) a total taking, shall be held and applied to pay the cost of restoration of the Premises. The balance, if any, remaining after restoration shall be divided between District and Lessee as they may agree and, in the absence of such Agreement, such balance Significant Real Estate Interest shall be paid or distributed as provided in this Section. If any Obligor shall receive directly any such award or payment, promptly following the receipt thereof such Obligor shall transfer in immediately available funds the Net Proceeds in respect of such Taking from such award or payment to District the Collateral Agent and Lessee the Collateral Agent shall distribute such Net Proceeds in accordance with the ratio, as nearly as practicable, which provisions of this clause (a) ). If the sum of (1) the then fair market value of District's reversionary interest in the improvements and (2) the fair market value of the land, valued as unencumbered by this Agreement, unimproved and to be used for the uses specified in this Agreement bears to (b) the then fair market value of Lessee’s interest in the improvements for the remainder of the term of this Agreement, provided, however, that Lessee’s share of any such balance Collateral Agent shall be applied first to any payment of any past due Base Rent, Percentage Rent or any other payment payable hereunder, including, without limitation, any past due tax payments.
2. Net awards and payment received on account of (a) a taking for temporary use or (b) a taking of only the leasehold estate created by this Agreement shall be paid to Lessee, except that:
a. If any portion of receive directly any such award or payment is made and no Default or Event of Default then exists, the Collateral Agent shall, prior to making any other payment or distribution hereunder, transfer to the Obligor whose Property was the subject of such Taking an amount in immediately available funds equal to the difference between (A) the amount of such award or payment so received and (B) the Net Proceeds relating thereto (as set forth in a certificate executed by reason a Senior Officer and delivered to the Collateral Agent), and thereafter the remainder of such award or payment shall be distributed as provided below. Any and all amounts to be distributed as provided in this clause (a) shall be distributed as follows:
(i) if the gross amount of any damage awards or payments with respect to or destruction of such Taking are in an amount less than $5,000,000, the Premises, and there exists in this agreement on obligations to restore said Premises, such portion Net Proceeds thereof held by the Collateral Agent shall be held immediately payable in immediately available funds directly to such Obligor which is the subject of such Taking upon receipt of a certificate executed by a Senior Officer which states that no Default or Event of Default exists and applied such Obligor will use such Net Proceeds to pay repair or replace the cost Significant Real Estate Interest which was the subject of restoration thereofsuch Taking; and
b. If any portion (ii) if the gross amount of any award awards or payment on account payments with respect to such Taking equals or exceeds $5,000,000, the Secured Parties shall review with the Company, the Company's business proposal with respect to the application of a taking for temporary use relates the Net Proceeds thereof held by the Collateral Agent, which proposal the Company shall submit to a period beyond the date of termination of this Agreement term, such portion shall be paid to District; and
c. If, Secured Parties at any time but no later than thirty (30) Business Days after the date such award becomes payable to Lesseehas been paid, any Base Rent, Percentage Rent or other payments payable hereunder (including, without limitation, any tax payments) shall be and give due and unpaid, such award shall be first applied consideration to the payment thereof.
3merits and rationale of such proposal recognizing the integrated nature of the Company's manufacturing facilities and operations. With the exception of payments to Lessee for loss of business goodwill, any award and payment received on account of a total taking shall be paid to the District, including any and all payments for leasehold bonus value, fixtures and equipment (other than trade fixtures) and severance damages.Within twenty
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Samples: Collateral Agency and Intercreditor Agreement (Castle a M & Co)
Application of Awards. Lender shall have the right to apply any Awards and other payments on account of a taking (less costsfirst, fees to reimburse Lender for all costs and expenses actually incurred by District, and Lessee in connection with the collection thereof) shall be applied as follows:
1. Net awards and payments received on account of taking, other than (a) a taking for temporary use, (b) a taking of only the leasehold estate hereunder, or (c) a total taking, shall be held and applied to pay the cost of restoration of the Premises. The balance, if any, remaining after restoration shall be divided between District and Lessee as they may agree and, in the absence of such Agreement, such balance shall be paid to District and Lessee in the ratio, as nearly as practicable, which (a) the sum of (1) the then fair market value of District's reversionary interest in the improvements and (2) the fair market value of the land, valued as unencumbered by this Agreement, unimproved and to be used for the uses specified in this Agreement bears to (b) the then fair market value of Lessee’s interest in the improvements for the remainder of the term of this Agreement, provided, however, that Lessee’s share of any such balance shall be applied first to any payment of any past due Base Rent, Percentage Rent or any other payment payable hereunderLender, including, without limitation, reasonable attorneys' fees and disbursements incurred in connection with the proceeding in question or the collection of such amounts, and, second, the remainder thereof as provided in Section 2.4(b) for insurance proceeds held by Lender. Notwithstanding the foregoing, and provided no Event of Default shall have occurred under this Agreement, the Note or any past due tax payments.
2. Net awards of the other Loan Documents, Borrower may adjust Awards that shall not exceed $100,000, in the aggregate, per occurrence, with respect to a Minor Taking (as hereinafter defined), provided such adjustment is carried out in a competent and payment received on account timely manner with respect to restorations of (a) a taking for temporary use or (b) a taking the Property; provided further, however, that, in the event no Event of only the leasehold estate created Default shall have occurred and be continuing, Awards adjusted by Borrower as permitted pursuant to this Agreement sentence shall be paid used for the restoration of the Property but only to Lessee, except that:
a. If any the extent that such Minor Taking involves the condemnation of a portion of the Improvements (it being understood and agreed that (i) Borrower shall cause such restoration to be performed in a good and workmanlike manner and in accordance with all applicable Governmental Regulations and insurance company requirements and recommendations and otherwise pursuant to plans and specifications developed for such restoration, (ii) Borrower shall obtain and deliver to Lender a copy of all waivers or releases of liens for all restoration work, and (iii) upon Lender's request, all construction and trade contracts and contracts for material, equipment, supplies and labor shall be collaterally assigned to Lender and Borrower shall cause the general contractor to cause all other parties thereto to agree to perform for the benefit of Lender, at the request of Lender, provided Lender shall pay them for their respective services). For the purpose of this Agreement, a "Minor Taking" shall mean any such award Taking occurring not later than nine (9) months prior to the Scheduled Maturity Date which (x) does not materially restrict or payment is made by reason of any damage limit access to or destruction the Property, (y) affects less than 10% of the Premisesrentable square footage of the Improvements, and there exists (z) does not result in this agreement more than 10% of the tenants at the Property terminating or having the right to terminate their Leases. In addition, Lender shall not be required to advance any Awards for the restoration of the Property unless Borrower shall deliver to Lender, and Lender shall approve in writing, the plans, specifications and construction budget for the restoration of the Property and Lender shall determine that the Improvements located on obligations the Real Estate can be restored so as to restore said Premisesconstitute a commercially viable building of the same quality and having the same rentable square footage as existed immediately before the Taking for the amounts set forth in the construction budget. Upon receipt by Lender of an Award from a Minor Taking and/or if Lender, in its sole discretion, shall otherwise elect to make such portion Awards available for the restoration of the Property, the following shall be held and applied to pay the cost of restoration thereof; and
b. If any portion of any award or payment on account of a taking for temporary use relates to a period beyond the date of termination of this Agreement term, such portion shall be paid to District; and
c. If, at any time such award becomes payable to Lessee, any Base Rent, Percentage Rent or other payments payable hereunder (including, without limitation, any tax payments) shall be due and unpaid, such award shall be first applied to the payment thereof.
3. With the exception of payments to Lessee for loss of business goodwill, any award and payment received on account of a total taking shall be paid to the District, including any and all payments for leasehold bonus value, fixtures and equipment (other than trade fixtures) and severance damages.apply:
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