Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture. (b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply: (i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease. (ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement. (iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof. (iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable. (v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above. (vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above. (c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 6 contracts
Samples: Property Management and Servicing Agreement (Store Capital LLC), Eighth Amended and Restated Property Management and Servicing Agreement (Store Capital LLC), Indenture Agreement (STORE CAPITAL Corp)
Casualty. (a) If any the Property or Improvements in connection with shall sustain a Hybrid Lease shall be materially damaged or destroyedCasualty, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer Borrower shall give prompt notice thereof of such Casualty to Lender and shall promptly commence and diligently prosecute to completion the repair and restoration of the Property as nearly as possible to the Indenture Trustee and condition the Property Manager. Following was in immediately prior to such Casualty (a “Restoration”) and otherwise in accordance with Section 5.3, it being understood, however, that Borrower shall not be obligated to restore the occurrence Property to the precise condition of an Insured Casualtythe Property prior to such Casualty provided the Property is restored, to the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restoreextent practicable, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, the Casualty. Borrower shall pay all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restorationRestoration whether or not such costs are covered by insurance. Lender may, repair, replacement or rebuilding, such Issuer but shall not be required to perform such restorationobligated to, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case make proof of loss or damages to a Property if not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered made promptly by any of the Property Insurance Policies, the following provisions shall apply:
(i) Borrower. In the event of an Insured a Casualty that where the loss does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid LeaseRestoration Threshold, the applicable Issuer Borrower may settle and adjust any claim without the consent such claim; provided that (a) no Event of the Property Manager Default has occurred and agree with the insurance company or companies on the amount to be paid upon the lossis continuing and (b) such adjustment is carried out in a commercially reasonable and timely manner. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event of a Casualty where the loss exceeds the Restoration Threshold or if an Insured Casualty shall exceed the greater Event of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid LeaseDefault then exists, then and in that event, the applicable Issuer Borrower may settle and adjust any such claim without only with the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the Property Manager and agree with the insurance company or companies on the amount opportunity to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Accountparticipate, at Borrower’s cost, in accordance with any such adjustments. Notwithstanding any Casualty, Borrower shall continue to pay the terms of Debt at the Indenture time and in the manner provided for its payment in the Note and in this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 5 contracts
Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.), Loan Agreement (Telx Group, Inc.), Loan Agreement (Interstate Hotels & Resorts Inc)
Casualty. (a) If any an Individual Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”"INSURED CASUALTY"), the applicable Issuer Borrower shall give prompt notice thereof to the Indenture Trustee and the Property ManagerLender. Following the occurrence of an Insured Casualty, the applicable Issuer Borrower, shall promptly (or shall promptly cause the Tenant or Borrower tenant to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that -------- ---- if the Property Manager Lender shall not direct make the Indenture Trustee to make proceeds of any amounts insurance received in connection with such Insured Casualty by Lender available to reimburse the applicable Issuer Borrower for the costs of such restoration, repair, replacement or rebuilding, such Issuer Borrower shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, provided further that such Issuer Borrower -------- ------- shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager Lender in the adjustment and collection of any amounts received in connection with an Insured Casualty insurance proceeds shall be deemed a Property Protection Advance become part of the Debt and be secured hereby and shall be reimbursed by the applicable Issuer Borrower to the Property Manager pursuant to the terms of the IndentureLender upon demand.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater lesser of (a) $100,000.00 250,000.00 or (b) five ten percent (510%) of the Fair Market Value of Release Amount for the applicable Property or Improvements in connection with a Hybrid LeaseIndividual Property, the applicable Issuer Borrower may settle and adjust any claim without the consent of the Property Manager Lender and agree with the insurance company or companies on the amount to be paid upon the loss; provided that such adjustment is carried out in a competent and timely manner. In such case, such Issuer Borrower is hereby authorized to collect and to distribute receipt for any such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Leaseinsurance proceeds.
(ii) In the event an Insured Casualty shall exceed the greater lesser of (a) $100,000.00 250,000.00 or (b) five ten percent (510%) of the Fair Market Value of Release Amount for the applicable Properties or Improvements in connection with a Hybrid LeaseIndividual Property, then and in that event, the applicable Issuer Lender may settle and adjust any claim without the consent of the Property Manager Borrower and agree with the insurance company or companies on the amount to be paid on the loss and the proceeds of any such policy shall immediately deposit such amounts received be due and payable solely to Lender and held in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, escrow by Lender in accordance with the terms of the Indenture and this Loan Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more less than the greater of (a) $100,000.00 or (b) twenty-five percent (525%) of the Fair Market Value of Release Amount for the applicable Properties or Improvements in connection with a Hybrid LeaseIndividual Property, and if, in the reasonable judgment of Lender, the Property Manager the Individual Property can be restored within twenty-four twelve (2412) months and prior to the Maturity Date to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, and after such restoration will adequately secure the outstanding balance of the Debt, then, if no Event of Default under the Indenture (as hereinafter defined) shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty proceeds of insurance (after reimbursement of any reasonable expenses incurred by the Property ManagerLender) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer applied to reimburse such Issuer or the subject Tenant Borrower for the cost of restoring, repairing, replacing or rebuilding the Individual Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer . Borrower hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; providedprovided always, that such Issuer or the subject Tenant Borrower shall pay all costs (and if required by the Property ManagerLender, such Issuer Borrower shall deposit the total thereof with the Indenture Trustee Lender in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds of insurance made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b)Except as provided above, an Issuer may elect for the proceeds from an of insurance collected upon any Insured Casualty or Condemnation to shall, at the option of Lender in its sole discretion, be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied Debt or to reimburse the applicable Issuer or the subject Tenant Borrower for the cost of restoring, repairing, replacing or rebuilding the Individual Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided below. Any such application to the Debt shall be without any prepayment consideration except that such amounts are greater than or if an Event of Default has occurred, then Borrower shall pay to Lender an additional amount equal to the Collateral Value of Yield Maintenance Premium, if any, that would be required under Section 2.4 hereof if a Defeasance Note in the related Property, deposited into the Release Account amount so prepaid was to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In entered into by Borrower and any amount then payable under the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first last sentence of subparagraph (iv) aboveSection 2.3.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 4 contracts
Samples: Loan Agreement (Capital Automotive Reit), Loan Agreement (Capital Automotive Reit), Loan Agreement (Capital Automotive Reit)
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage Settlement all or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any portion of the Property Insurance Policies, is destroyed or damaged and the following provisions shall apply:
(i) In the event reasonable cost of an Insured Casualty that does not exceed the repair and restoration with materials of like kind and quality is greater of (a) $100,000.00 or (b) five than twenty percent (520%) of the Fair Market Value Purchase Price (“Material Damage”), then either Seller or Purchaser shall have the right, at such party’s option, to terminate this Agreement by giving written notice to the other within ten (10) days after the date of the applicable Property or Improvements casualty, whereupon the Deposit shall be returned to Purchaser (provided Purchaser is not otherwise in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualtydefault hereunder) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture neither party shall have occurred any further liability hereunder (except with respect to Purchaser’s repair and be then continuingindemnification obligations as set forth in Sections 2(b), the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, 13 and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for 14). If the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants repair and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater restoration is less than or equal to the Collateral Value Material Damage threshold, or if more than the Material Damage threshold and neither Seller nor Purchaser elects to terminate this Agreement, Seller and Purchaser shall proceed to Settlement and Seller, in its sole discretion, shall either (a) assign to Purchaser all of the related Propertyits right, deposited into the Release Account to be used to acquire Qualified Substitute Propertiestitle, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient interest in addition and to the proceeds of any and all fire or other casualty insurance proceeds relating to complete such damage, or (b) credit Purchaser at Settlement in the proposed amount of such insurance proceeds (subject to adjustment as provided below); provided that Seller shall not be responsible for any deductibles or other losses not covered by such proceeds and there shall be no credit or adjustment of the Purchase Price. Notwithstanding the foregoing, Seller shall be entitled to, but not obligated, to make such repair and restoration (or commence such repair and restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restorationSettlement, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds in which event Seller shall be disbursed prior entitled to disbursement of such proceeds; and at all times, the undisbursed balance of such apply any insurance proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion such repair and restoration incurred by Seller or obtain a credit from Purchaser at Settlement in the amount of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment cost of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds repair and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained restoration incurred by Seller. As used herein, if any Permitted Lease “ other casualty” shall obligate the Tenant thereunder to repairmean casualty insured under a customary property damage insurance policy without modifications or endorsements, restore and does not include an event or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) aboveinvolving Hazardous Substances or other environmental matters or similar events or occurrences.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 4 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement, Purchase and Sale Agreement
Casualty. (a) If any Individual Property or Improvements in connection with shall sustain a Hybrid Lease shall be materially damaged or destroyedCasualty, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer Borrower shall give prompt notice thereof of such Casualty to Lender and shall promptly commence and diligently prosecute to completion the repair and restoration of such Individual Property as nearly as possible to the Indenture Trustee condition such Individual Property was in immediately prior to such Casualty (a “Restoration”) and otherwise in accordance with Section 5.3, it being understood, however, that Borrower shall not be obligated to restore such Individual Property to the precise condition of such Individual Property Manager. Following prior to such Casualty provided the occurrence of an Insured CasualtyIndividual Property is restored, to the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restoreextent practicable, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, the Casualty. Borrower shall pay all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restorationRestoration whether or not such costs are covered by insurance. Lender may, repair, replacement or rebuilding, such Issuer but shall not be required to perform such restorationobligated to, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case make proof of loss or damages to a Property if not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered made promptly by any of the Property Insurance Policies, the following provisions shall apply:
(i) Borrower. In the event of an Insured a Casualty that where the loss does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid LeaseRestoration Threshold, the applicable Issuer Borrower may settle and adjust any claim without the consent such claim; provided that (a) no Event of the Property Manager Default has occurred and agree with the insurance company or companies on the amount to be paid upon the lossis continuing and (b) such adjustment is carried out in a commercially reasonable and timely manner. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event of a Casualty where the loss exceeds the Restoration Threshold or if an Insured Casualty shall exceed the greater Event of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid LeaseDefault then exists, then and in that event, the applicable Issuer Borrower may settle and adjust any such claim without only with the consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the Property Manager and agree with the insurance company or companies on the amount opportunity to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Accountparticipate, at Borrower’s cost, in accordance with any such adjustments. Notwithstanding any Casualty, Borrower shall continue to pay the terms of Debt at the Indenture time and in the manner provided for its payment in the Note and in this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 4 contracts
Samples: Loan Agreement (Americold Realty Trust), Loan Agreement (Americold Realty Trust), Loan Agreement (Americold Realty Trust)
Casualty. In the event of any loss or damage to the Collateral Property, Borrower shall give prompt written notice to the insurance carrier and Lender. Borrower shall not, and shall not permit Owner to, settle, adjust or compromise any claim under such insurance policies without the prior written consent of Lender; provided, however, that Borrower or Owner may make proof of loss, settle, adjust or compromise any claim under such insurance policies solely to the extent expressly permitted under the Mortgage Loan Documents so long as no Default or Event of Default has occurred and is continuing. Any proceeds of such claim which are not (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer shall give prompt notice thereof applied to the Indenture Trustee and balance of the Property Manager. Following loan evidenced by the occurrence of an Insured Casualty, the applicable Issuer shall promptly Mortgage Loan Documents or (or shall promptly cause the Tenant or Borrower tob) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer used for the costs restoration and repair of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Collateral Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance PoliciesDocuments, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect Lender and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole AmountObligations whether or not then due, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements less reasonable out-of-pocket expenses incurred in connection with a Hybrid Lease the settlement, adjustment or part thereof subject compromise of such claim. Notwithstanding anything contained in the Loan Documents to the Insured Casualtycontrary, in Lender hereby agrees that Borrower and Owner may use all insurance proceeds to restore and repair the manner set forth below or (C) Collateral Property, provided that such amounts are greater than or equal to use is permitted under the Collateral Value terms of the related PropertyMortgage Loan Documents subject, deposited into the Release Account however, to be used to acquire Qualified Substitute Propertiesdisbursement, Qualified Substitute Hybrid Leases or Qualified Substitute Loansoversight, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held inspection and monitoring requirements and controls required by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance Mortgage Lender so long as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restorationMortgage Loan is outstanding and, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds availablethereafter, subject only to the conditions set forth disbursement, oversight, inspection and monitoring requirements and controls customary for construction loans for similar type properties in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) abovesimilar geographic areas.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 4 contracts
Samples: Mezzanine Loan Agreement (Preferred Apartment Communities Inc), Mezzanine Loan Agreement (Preferred Apartment Communities Inc), Mezzanine Loan Agreement (Preferred Apartment Communities Inc)
Casualty. (a) If any Individual Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an a “Insured Casualty”), the applicable Issuer Borrower shall give prompt notice thereof to the Indenture Trustee and the Property ManagerLender. Following the occurrence of an Insured a Casualty, the applicable Issuer subject to Borrower’s rights under Section 2.4.4(b) and Section 2.5.3 hereof, Borrower or Operating Lessee, regardless of whether insurance proceeds are available, shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same such Individual Property in accordance with Legal Requirements to be of at least equal value and of substantially the same character as prior to such damage or destructiondestruction as soon as reasonably practicable (but in no event later than one hundred twenty (120) days after such Casualty). Lender may, all to be effected in accordance with applicable law; provided that if the Property Manager but shall not direct the Indenture Trustee be obligated to make proof of loss if not made promptly by Borrower. In addition, Lender may participate in any amounts received settlement discussions with any insurance companies (and shall approve any final settlement) (i) if an Event of Default is continuing or (ii) with respect to any Casualty in connection with such Insured Casualty available to reimburse which the applicable Issuer for Net Proceeds or the costs of such restoration, repair, replacement completing the Restoration are equal to or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain greater than the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection Alteration Threshold with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer respect to the Property Manager pursuant affected Individual Property, and Borrower shall deliver to the terms Lender all instruments required by Lender to permit such participation. Provided no Event of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements Default is continuing, in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured a Casualty that does not exceed where Net Proceeds or the greater costs of (a) $100,000.00 or (b) five completing the Restoration are two percent (52%) of the Fair Market Value Allocated Loan Amount of the applicable any Individual Property or Improvements in connection with a Hybrid Leaseless, Borrower, notwithstanding Section 5.4, may directly obtain and apply the applicable Issuer may settle and adjust any claim without Net Proceeds; provided that such Net Proceeds must be used towards the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty Restoration in accordance with the terms and provisions of hereof. Except as set forth in the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements foregoing sentence, any Insurance Proceeds in connection with a Hybrid Lease, then and in that event, the applicable Issuer may any Casualty (whether or not Lender elects to settle and adjust any the claim without the consent of the Property Manager or Borrower or Operating Lessee settles such claim) shall be due and agree with the insurance company or companies on the amount payable solely to be paid on the loss Lender and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, held by Lender in accordance with the terms of the Indenture and this Agreement.
(iii) . In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 Borrower, Operating Lessee or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds party other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or Lender is a payee on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as any check representing Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any Casualty, Borrower or Operating Lessee, as applicable, shall immediately endorse, and cause all such Propertythird parties to endorse, such check payable to the related proceeds shall be applied order of Lender. Borrower and Operating Lessee each hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to endorse any such check payable to the order of Lender. Borrower and Operating Lessee each hereby release Lender from any and all liability with respect to the settlement and adjustment by Lender of any claims in accordance with the related Loan Documentsrespect of any Casualty.
Appears in 3 contracts
Samples: Loan Agreement (Hospitality Investors Trust, Inc.), Loan Agreement (Hospitality Investors Trust, Inc.), Loan Agreement (Hospitality Investors Trust, Inc.)
Casualty. (a) If any the Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an a “Insured Casualty”), the applicable Issuer Borrower shall give prompt notice thereof to the Indenture Trustee and the Property ManagerLender. Following the occurrence of an Insured a Casualty, the applicable Issuer Borrower, regardless of whether insurance proceeds are available, shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same Property in accordance with Legal Requirements to be of at least equal value and of substantially the same character as prior to such damage or destruction. Lender may, all to be effected in accordance with applicable law; provided that if the Property Manager but shall not direct the Indenture Trustee be obligated to make proof of loss if not made promptly by Borrower. In addition, Lender may participate in any amounts received settlement discussions with any insurance companies (and shall approve any final settlement) (i) if an Event of Default is continuing or (ii) with respect to any Casualty in which the Net Proceeds or the costs of completing the Restoration are equal to or greater than One Million and No/100 Dollars ($1,000,000) and Borrower shall deliver to Lender all instruments required by Lender to permit such participation. Any Insurance Proceeds in connection with such Insured any Casualty available (whether or not Lender elects to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any the claim without the consent of the Property Manager or Borrower settles such claim) shall be due and agree with the insurance company or companies on the amount payable solely to be paid upon the loss. In such case, such Issuer is hereby authorized to collect Lender and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, held by Lender in accordance with the terms of the Indenture and this Agreement.
(iii) . In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 Borrower or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds party other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or Lender is a payee on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as any check representing Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any Casualty, Borrower shall immediately endorse, and cause all such Propertythird parties to endorse, such check payable to the related proceeds shall be applied order of Lender. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to endorse any such check payable to the order of Lender. Borrower hereby releases Lender from any and all liability with respect to the settlement and adjustment by Lender of any claims in accordance with the related Loan Documentsrespect of any Casualty.
Appears in 3 contracts
Samples: Loan Agreement (NOVONIX LTD), Loan Agreement (NOVONIX LTD), Loan Agreement (Medalist Diversified REIT, Inc.)
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an a “Insured Casualty”), the applicable Issuer Borrower shall give prompt notice thereof to the Indenture Trustee and the Property ManagerAgent. Following the occurrence of an Insured a Casualty, the applicable Issuer Borrower, regardless of whether insurance proceeds are available, shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same affected Property in accordance with Legal Requirements to be of at least equal value and of substantially the same character as prior to such damage or destruction. Agent may, all to be effected in accordance with applicable law; provided that if the Property Manager but shall not direct the Indenture Trustee be obligated to make proof of loss if not made promptly by Borrower. In addition, Agent may participate in any amounts received settlement discussions with any insurance companies (and shall approve any final settlement) (i) if an Event of Default is continuing or (ii) with respect to any Casualty in connection with such Insured Casualty available to reimburse which the applicable Issuer for Net Proceeds or the costs of such restorationcompleting the Restoration are equal to or greater than, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer respect to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policiesaffected Property, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five two percent (52%) of the Fair Market Value of Allocated Loan Amount for such Property, and Borrower shall deliver to Agent all instruments required by Agent to permit such participation. Except as set forth in the applicable Property or Improvements foregoing sentence, any Insurance Proceeds in connection with a Hybrid Lease, the applicable Issuer may any Casualty (whether or not Agent elects to settle and adjust any the claim without the consent of the Property Manager or Borrower settles such claim) shall be due and agree with the insurance company or companies on the amount payable solely to be paid upon the loss. In such case, such Issuer is hereby authorized to collect Agent and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, held by Agent in accordance with the terms of the Indenture and this Agreement.
(iii) . In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 Borrower or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds party other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or Agent is a payee on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as any check representing Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any Casualty, Borrower shall immediately endorse, and cause all such Propertythird parties to endorse, such check payable to the related proceeds shall be applied order of Agent (on behalf of Lenders). Borrower hereby irrevocably appoints Agent as its attorney-in-fact, coupled with an interest, to endorse any such check payable to the order of Agent (on behalf of Lenders). Borrower hereby releases Agent and Lenders from any and all liability with respect to the settlement and adjustment by Agent of any claims in accordance with respect of any Casualty, except to the related Loan Documentsextent such liability arises as a result of the gross negligence or willful misconduct of Agent or any Lender.
Appears in 3 contracts
Samples: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Casualty. (a) If the Premises or Project, or any Property or Improvements in connection with a Hybrid Lease portion of either, shall be materially damaged or destroyed, in whole or in part, by fire or other casualty covered by the insurance carried by Landlord hereunder, and the cost of repairing such damage shall not be greater than ten percent (an “Insured Casualty”)10%) of the then full replacement cost thereof, the applicable Issuer shall give prompt notice thereof then, subject to the Indenture Trustee following provisions of this Article, Landlord shall repair the Premises and/or Project. If the Premises or Project shall be damaged (a) by fire or other casualty not covered by insurance carried by Landlord hereunder, (b) by fire or other casualty covered by insurance carried by Landlord hereunder and Landlord's mortgagee requires that such insurance proceeds be applied toward the Property Manager. Following mortgage debt, or (c) to an extent greater than ten percent (10%) of the occurrence of an Insured Casualtythen full replacement cost thereof, then Landlord shall have the applicable Issuer shall promptly option to either
(i) repair or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild reconstruct the same to be of at least equal value and of substantially the same character condition as immediately prior to such fire or other casualty, or (ii) terminate this Lease by so notifying Tenant within thirty (30) days of the date that Landlord is notified as to the extend of proceeds available for such repair of reconstruction, such termination to be effective as of the date of such notice. The Rent required to be paid hereunder shall be abated in proportion to the portions of the Premises, if any, which are rendered untenantable by fire or other casualty hereunder until repairs of the Premises are completed, or if the Premises are not repaired, until the termination date hereunder. Other than such Rent abatement, no damages, compensation or claim shall be payable by Landlord for loss of the use of the whole or any part of the Premises, Xxxxxx's personal property, or any inconvenience, loss of business, or annoyance arising from any such repair and reconstruction. Notwithstanding anything to the contrary, if the damage results from the default, misconduct or destructionnegligence of Tenant, its agents, employees, licensees or invitees, then Tenant shall not be entitled to any abatement or reduction of any Rent or other sums due hereunder and if the cost to repair such damage is not fully covered by Landlord's insurance, such damage shall be repaired by Tenant, or at Landlord's option by Landlord, at Tenant's expense (to the extent Landlord is not reimbursed by insurance). If this Lease is terminated as provided in (c)(ii) above, all Rent shall be apportioned and paid up to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer termination date. Landlord shall not be required to perform such restorationrepair or replace any furniture, repair, replacement furnishings or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as other personal property which Tenant may be reasonably required entitled to put remove from the Premises or any property constructed and maintain the Improvements in a safe and secure condition. The expenses incurred installed by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager or for Tenant pursuant to the terms of the Indenture.
(b) In case of loss Section 8.01 hereof or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding installations in excess of the net proceeds made available pursuant to the terms hereofBuilding Standard.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 3 contracts
Samples: Lease Agreement, Lease Agreement, Lease Agreement
Casualty. (a) If the Improvements or any Property or Improvements in connection with a Hybrid Lease shall be materially part thereof are damaged or destroyeddestroyed by any cause covered by any policy of insurance required to be maintained by Tenant hereunder, in whole or in part, by fire or other casualty (an “Insured Casualty”), Tenant shall promptly commence and diligently complete the applicable Issuer shall give prompt notice thereof restoration of the Improvements as nearly as possible to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as condition thereof prior to such damage or destruction; provided, all to be effected in accordance with applicable law; provided however, that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) more than twenty five percent (525%) of the Fair Market Value of the applicable Property Improvements are destroyed or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle are so damaged by fire or other casualty and adjust any claim without the consent of the Property Manager and agree with if the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit proceeds do not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, provide at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed least ninety percent (90%) of the value funds necessary to accomplish the restoration, Tenant, subject to any consent rights of Lender, if any, may terminate this Ground Lease within thirty (30) days after the later of (i) the date of such damage or destruction, or (ii) the date on which Tenant is notified of the amount of insurance proceeds available for restoration. In the event Tenant is required, or elects, to restore the Improvements, all proceeds of any policy of insurance required to be maintained by Tenant under this Ground Lease shall, subject to the rights of Lenders, be used by Tenant for that purpose and Tenant shall make up from its own funds or obtain additional financing as reasonably approved by OCII any deficiency between the amount of insurance proceeds available for the work performed from time of restoration and the actual cost thereof. In the event Tenant elects to time; funds other than terminate this Ground Lease pursuant to its right to do so under this Section 20.01, or elects not to restore the Improvements, the insurance proceeds shall be disbursed prior to disbursement of such proceeds; divided among OCII, Tenant and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied Lender in accordance with the related Loan Documentsprovisions of Section 20.02. In the event Tenant is required or elects to restore the Improvements, the Tenant is hereby authorized and may enter into a settlement or consent to an adjustment of an insurance award, in its name and/or in the name of the Landlord, relating to such casualty, subject to any Lender’s consent rights, if any.
Appears in 2 contracts
Samples: Ground Parcel Lease, Ground Lease
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease the Building and/or other improvements on the Premises shall be materially damaged or destroyed, in whole or in part, destroyed by fire or other casualty (an each, a “Insured Casualty”), Tenant, at Tenant’s sole cost and expense, shall promptly and diligently repair, rebuild or replace such Building and other improvements, so as to restore the applicable Issuer shall give prompt notice thereof Premises to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as condition in which they were immediately prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make irrespective of whether any amounts received in connection with such Insured Casualty insurance proceeds are adequate or available to reimburse repair, rebuild or replace such Building. The net proceeds of any insurance (other than rent loss insurance) recovered by reason of such damage to, or such destruction of, the applicable Issuer Building and/or other improvements on the Premises in excess of the cost of adjusting the insurance claim and collecting the insurance proceeds (such excess being hereinafter called the “net insurance proceeds”) shall be held in trust by Landlord as loss payee or held by any holder of an interest in the Premises which may be superior to Tenant’s interest under this Lease (a “Holder”) and released for the costs purpose of paying the cost of restoring such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put Building and maintain the Improvements in a safe and secure conditionother improvements. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty Such net insurance proceeds shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by released to Tenant or Tenant’s contractors from time to time as the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, work progresses in accordance with the terms of a commercially reasonable construction contract requiring progress payments or payments on a monthly basis. Prior to the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) commencement of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Leasework, and if, in the Tenant shall deliver to Landlord reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months proof that such net insurance proceeds are adequate to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for pay the cost of restoringsuch restoration. If such net insurance proceeds are not adequate, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Managerpay, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such net insurance proceeds; and at all times, the undisbursed balance of amount by which such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of cost will exceed such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for liennet insurance proceeds. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the no insurance proceeds paid to Tenant thereunder due to repairloss or damage of Tenant’s furniture, restore fixtures, equipment or rebuild the affected Property after the occurrence of an Insured Casualtyother personal property, the applicable Issuer, at the direction or properly allocable to loss or damage of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds same shall be applied in accordance with the related Loan Documentspaid to Landlord.
Appears in 2 contracts
Samples: Industrial Building Lease (Lenox Group Inc), Purchase and Sale Agreement (Lenox Group Inc)
Casualty. (a) If any Individual Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an a “Insured Casualty”), the applicable Issuer Borrower shall give prompt notice thereof to the Indenture Trustee and the Property ManagerLender. Following the occurrence of an Insured a Casualty, the applicable Issuer subject to Borrower’s rights under Section 2.4.4(b) and Section 2.5.3 hereof, Borrower, regardless of whether insurance proceeds are available, shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same such Individual Property in accordance with Legal Requirements to be of at least equal value and of substantially the same character as prior to such damage or destructiondestruction as soon as reasonably practicable (but in no event later than one hundred twenty (120) days after such Casualty). Lender may, but shall not be obligated to make proof of loss if not made promptly by Borrower. In addition, Lender may participate in any settlement discussions with any insurance companies (and shall approve any final settlement) (i) if an Event of Default is continuing or (ii) with respect to any Casualty in which the Net Proceeds or the costs of completing the Restoration are equal to or greater than the Alteration Threshold with respect to the affected Individual Property, and Borrower shall deliver to Lender all instruments required by Lender to be effected permit such participation. Provided no Event of Default is continuing, in accordance with applicable lawthe event of a Casualty where Net Proceeds or the costs of completing the Restoration are $250,000 or less, Borrower, notwithstanding Section 5.4, may directly obtain and apply the Net Proceeds; provided that if such Net Proceeds must be used towards the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty Restoration in accordance with the terms and provisions of hereof. Except as set forth in the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements foregoing sentence, any Insurance Proceeds in connection with a Hybrid Lease, then and in that event, the applicable Issuer may any Casualty (whether or not Lender elects to settle and adjust any the claim without the consent of the Property Manager or Borrower settles such claim) shall be due and agree with the insurance company or companies on the amount payable solely to be paid on the loss Lender and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, held by Lender in accordance with the terms of the Indenture and this Agreement.
(iii) . In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 Borrower or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds party other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or Lender is a payee on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as any check representing Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any Casualty, Borrower shall immediately endorse, and cause all such Propertythird parties to endorse, such check payable to the related proceeds shall be applied order of Lender. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to endorse any such check payable to the order of Lender. Borrower hereby releases Lender from any and all liability with respect to the settlement and adjustment by Lender of any claims in accordance with the related Loan Documentsrespect of any Casualty.
Appears in 2 contracts
Samples: Loan Agreement (W2007 Grace Acquisition I Inc), Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Casualty. (a) If any Property or the Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, totally destroyed by fire or other casualty (an “Insured Casualty”)by extended coverage perils, the applicable Issuer they shall give prompt notice thereof be repaired or restored according to the Indenture Trustee provisions contained in this Section, at the cost and the Property Managerexpense of Lessee. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer Lessor shall not be required to perform contribute in any way toward such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty involved shall be deemed repaired to a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer condition which is comparable to their condition just prior to the Property Manager pursuant damage, subject to applicable law at the terms of the Indenturetime.
(b) In case the event of loss a partial or damages total destruction of the Improvements on the Leased Premises, Lessee shall repair, restore or reconstruct the affected Improvements within one hundred eighty (180) days after the receipt by Lessee of fire insurance proceeds, subject to force majeure, or within a reasonable additional extension period which may be required, to a Property not securing a Mortgage Loan or Improvements condition comparable to their condition just prior to such destruction, subject to applicable law at the time. Lessor shall promptly endorse any checks payable to Lessor in connection with a Hybrid Lease covered by such proceeds and shall deliver the same to Lessee or the Insurance Trustee, as the case may be. The proceeds of any of the Property Insurance Policies, the following provisions such insurance shall applybe payable as follows:
(i) In to Lessee to the event extent of an Insured Casualty that does proceeds not exceed exceeding $100,000, which proceeds Xxxxxx agrees shall be received in trust to pay the greater costs of (a) $100,000.00 restoration or (b) five percent (5%) shall be payable by Xxxxxx, if it so elects, to its sublessee in trust to pay the cost of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Leaserestoration.
(ii) In the entire proceeds, in the event an Insured Casualty shall the proceeds exceed $100,000, to the Insurance Trustee.
(c) Upon receipt by the Insurance Trustee of:
(i) A certificate of Lessee (a "Repair Certificate'") dated not more than twenty (20) days prior to the date of such receipt (A) requesting the payment of a specified amount of such insurance monies; (B) describing in reasonable detail the work and materials applied to the restoration or replacement of the damaged or destroyed Improvements since the date of the last Repair Certificate of Lessee; (C) stating that such specified amount does not exceed the greater cost of such work and materials; and (aD) $100,000.00 stating that such work and materials have not previously been made the basis of any request for or any withdrawal of money;
(bii) five percent A certificate of an independent engineer or an independent architect designated by Xxxxxx, who in either case shall be duly licensed and shall be approved by Lessor (5%which approval shall not be unreasonably withheld, conditioned or delayed) stating (A) that the work and materials described in the accompanying certificate of Lessee were satisfactorily performed and furnished and were necessary, appropriate or desirable to the restoration or replacement of the Fair Market Value of the applicable Properties damaged or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Accountdestroyed Improvements, in accordance with the terms plans and specifications therefor; (B) that the amount specified in such Lessee's Repair Certificate is not in excess of the Indenture cost of such work and this Agreement.materials; and (C) the estimated additional amount, if any, required to complete the restoration or replacement of the damaged or destroyed Improvements;
(iii) In A written opinion of counsel, who may be counsel for Lessee, reasonably satisfactory to Lessor, dated not earlier than Lessee's Repair Certificate, or, at the event option of Lessee, an Insured Casualty where endorsement of Lessor's title insurance policy or an updated title insurance policy from a title insurance company acceptable to Lessor, to the loss effect that, as of the date thereof the Leased Premises is in an aggregate amount more not subject to any mechanics' lien or other lien or encumbrance (other than the greater Leasehold Mortgage) caused by Lessee, its subcontractors, or their respective employees, contractors or agents; the Insurance Trustee shall pay to Lessee the amount requested; provided, however, that the balance of (a) $100,000.00 or (b) five percent (5%) insurance monies deposited with the Insurance Trustee shall not be reduced below the amount specified in such certificate of the Fair Market Value independent engineer or the independent architect as the amount required to complete the restoration or replacement of the applicable Properties damaged or Improvements destroyed Improvements. Each such payment shall be held by Lessee in connection with a Hybrid Lease, trust and if, in shall be used solely for the reasonable judgment payment of the Property Manager costs described in Xxxxxx's Repair Certificate (or to reimburse Lessee for any portion of such costs which Xxxxxx has advanced from its own funds). If there shall remain on deposit with the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment Insurance Trustee any balance of insurance monies after any damaged or destroyed portions of the impact Improvements shall have been completely restored or replaced, as evidenced by a certificate of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior independent engineer or independent architect delivered to the Insured CasualtyInsurance Trustee, thensuch balance of insurance monies shall be paid to Lessee, if provided no Event of Default under the Indenture shall have occurred and be then continuingexist hereunder. Concurrently, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed Xxxxxx's delivery to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost Insurance Trustee of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess each of the net proceeds made available pursuant foregoing certificates and/or legal opinions, Lessee shall deliver duplicate copies thereof to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approveLessor. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary set forth in this subsection, the Insurance Trustee shall make no further payment of insurance proceeds to Lessee following receipt of a notice from Lessor that an Event of Default exists under this Agreement until and unless instructed by Lessor that such Event of Default has been cured. Lessor shall promptly endorse any checks payable to the order of Lessor in connection with such insurance proceeds and shall deliver the same to Lessee or to the Insurance Trustee, as the case may be.
(d) Anything contained hereinin this Section to the contrary notwithstanding, if in the event that either (i) a total or substantial destruction of the Project shall occur at any Permitted Lease time during the last two (2) years of the Term of this Agreement, or (ii) at any time during the Term a total or substantial destruction occurs but, by reason of a change in law, the Lessee is unable to build the Project as large as existed formerly and Lessee shall obligate notify Lessor that Lessee's Board of Directors has determined in good faith that the Tenant thereunder leasable area after reconstruction will not be sufficient to make the operation of the Project economically viable, Lessee may elect not to repair, restore or rebuild reconstruct the affected Property Improvements by sending written notice of such election to Lessor within ninety (90) days after the occurrence of an Insured Casualtydestruction shall have occurred. In the event that Lessee shall so elect not to repair, restore or reconstruct, the applicable Issuer, at the direction lease hereby created shall cease as of the Property Managerdate of said destruction, Lessee shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any pay all Rent due as of the Property Insurance Policies with respect to a Property securing a Mortgage Loan date of said destruction, and there shall be no further liability of either Party except for those obligations which expressly survive the expiration or any Condemnation with respect to any termination of this Agreement. In such Propertyevent, the related insurance proceeds shall be applied in accordance with the related Loan Documentsfollowing order of priority: To payment of the Leasehold Mortgage; Remainder to Lessor.
Appears in 2 contracts
Samples: Ground Lease, Ground Lease
Casualty. (a) If any Property the Lessee Assets and the Additional Improvements are destroyed or Improvements in connection with damaged (each, a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured CasualtyCasualty Event”), the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment opinion of Lessee, such Casualty Event materially and adversely affects Lessee’s use and operation of the Property Manager Lessee Assets, then Lessee shall have the Property can right, within 180 days after the occurrence of such Casualty Event, to terminate this Lease by written notice to Lessor. In the event this Lease is terminated pursuant to this Section 7.3, (i) all charges paid or owing hereunder shall be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment prorated as of the impact effective date of such termination, (ii) Lessee shall be entitled to any insurance proceeds applicable to the Lessee Assets and the Additional Improvements, and (iii) Lessee shall, in good faith and with due diligence, remove all Lessee Assets and Additional Improvements from the Leased Premises, and repair and restore any damage to the Leased Premises or the remainder of the termination of any Leases due to Lake Xxxxxxx Complex caused by such Insured Casualty) removal, at Lessee’s sole cost and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereofexpense.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(vb) In the event Lessee does not timely elect to terminate this Lease following the applicable Issuer is entitled occurrence of a Casualty Event in accordance with Section 7.3(a), Lessee shall repair and restore any damaged or destroyed Lessee Assets and/or Additional Improvements to reimbursement out of substantially the amounts held by the Indenture Trustee, condition in which such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made Lessee Assets and/or Additional Improvements existed immediately prior to the final completion of the restoration, repair, replacement applicable Casualty Event. Such repair and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds restoration by Lessee shall be disbursed prior to disbursement of such proceeds; performed in good faith and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds availabledue diligence, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence Lessee’s receipt of subparagraph (iv) aboveany required building or construction permits.
(c) Notwithstanding anything contained herein If, notwithstanding Section 7.3(b), Lessee fails to act in good faith or to use due diligence to repair and restore the Lessee Assets and Additional Improvements to the contrary required condition within a reasonable time, then (including in Section 3.20 belowi) Lessor shall have the right to take such actions as are necessary or reasonable to effect such repair and restoration (and Lessee shall take all actions reasonably necessary to facilitate Lessor’s actions), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation and insurance proceeds with respect to any such Property, the related proceeds remaining repair or restoration work shall be applied payable to Lessor, (ii) Lessor shall have the right to immediately terminate this Lease upon written notice to Lessee, (iii) Lessee shall be obligated to use any insurance proceeds actually received by Lessee to reasonably clean up the Lessee Assets, Additional Improvements and Leased Premises and (iv) Lessor shall have the option to purchase the Lessee Assets and Additional Improvements for the Purchase Price (the “Casualty Purchase Option”), as determined in accordance with Section 7.3(d).
(d) If Lessor elects to exercise the related Loan DocumentsCasualty Purchase Option, Lessor shall notify Lessee in writing (the “Option Notice”). Promptly thereafter, Lessor and Lessee shall engage a mutually-acceptable independent appraiser with experience in valuing petrochemical production assets to determine the fair market value of the Lessee Assets and the Additional Improvements (the “Fair Market Value”), which is the price at which a willing buyer would be willing to buy, and a willing seller would be willing to sell, each under no compulsion, the Lessee Assets and Additional Improvements in their then-current condition. The closing of the purchase and sale of the Lessee Assets and Additional Improvement shall occur on the closing date set forth in the Option Notice (the “Option Closing Date”), which date shall not be more than 90 days after Lessor’s delivery of the Option Notice. At such closing, (i) Lessee shall deliver such duly executed and, if applicable, acknowledged, conveyances, deeds, assignments, bills of sale and other documents and instruments as are required to convey and transfer the Lessee Assets and Additional Improvements to Lessor, each of which shall include a special warranty of title or similar warranty of claims and encumbrances created or existing by, through or under Lessee and its Affiliates, but otherwise without warranty and (ii) Lessor shall deliver to Lessee, by wire transfer or other immediately available funds, the Purchase Price. As used herein, the “Purchase Price” means the Fair Market Value, less any costs and expenses incurred by Lessor in connection with the restoration and repair of the Lessee Assets and Additional Improvements prior to the Option Closing Date (excluding costs and expenses for which Lessor has actually received insurance proceeds).
Appears in 2 contracts
Samples: Site Lease Agreement (Westlake Chemical Partners LP), Site Lease Agreement (Westlake Chemical Partners LP)
Casualty. Tenant’s obligations with respect to any damage to or destruction of the Parking Improvements (aif any) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged as set forth in Section 4.3 and Exhibit “R”, Exhibit “R-3”, or destroyedExhibit “R-4”, as applicable, and not this Article 20. Subject to Section 20.2, in whole the event of any damage to or destruction of any Improvements, whether or not from a risk coverable by the insurance described in partArticle 18, Tenant shall promptly repair and restore such Improvements, in a manner reasonably approved in writing by fire or other casualty (an “Insured Casualty”)Landlord, so that after such restoration and repair, the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of Initial Improvements are at least equal value as valuable and of substantially the same character usable as immediately prior to such damage or destruction. Tenant shall be entitled to have any insurance policy proceeds received by Tenant held in trust with the Permitted Mortgage Lender with a Permitted Lease Encumbrance that has the Improvements as collateral and disbursed as progress payments as the work of repair, all restoration or replacement progresses, to be effected used solely for paying for such work; and upon completion of such work free and clear of mechanics or other liens, any remaining balance of any insurance proceeds shall be paid first to the Permitted Mortgage Lender to reduce the indebtedness of the Permitted Lease Encumbrance, and thereafter, if the Permitted Lender permits or if it is required by the terms of the Permitted Encumbrance, to Tenant and Landlord proportionate to the equity investment of each Party in the Improvements. The Permitted Mortgage Lender may disburse the progress payments in accordance with applicable law; provided its normal disbursement procedures (e.g. upon receipt of appropriate mechanics lien releases, invoices, etc.) so long as such disbursement procedures are reasonably satisfactory to Landlord and ensure that if the Property Manager shall not direct proceeds of insurance are applied to the Indenture Trustee costs of repairing, restoring or replacing the Improvements that were damaged or destroyed. To the extent that the insurance proceeds are insufficient to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer pay for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairingrepairing or replacing the damaged Improvements, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay such deficiency to the trustee for application to the restoration costs within sixty (60) days after the insurer first makes available such insurance proceeds for repair, restoration or replacement. The provisions of Articles 6 and 7 shall apply to all costs work performed pursuant to this Article 20. Notwithstanding the foregoing, if Tenant and the Permitted Lender are not able to obtain sufficient insurance proceeds (and if required by in the Property Managercase of an insured casualty) or construction funds (in the case of an uninsured casualty) to commence repair, such Issuer shall deposit restoration or replacement of the total thereof with the Indenture Trustee in advancedamaged Initial Improvements within ninety (90) days of such restoringdamage or destruction, repairingand in the case of an insured casualty, replacing Tenant and the Permitted Lender have used their best efforts to so obtain such insurance proceeds, or rebuilding in excess the case of an uninsured casualty, Tenant and the net Permitted Lender have used their best efforts to obtain sufficient construction funds, then Tenant and the Permitted Lender shall have such additional time as is necessary to obtain such insurance proceeds made available pursuant or construction funds (but in no event to exceed one hundred and eighty (180) days from the terms hereof.
(iv) Subject to clauses (i)-(iiidate of such damage or destruction) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation which to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder commence to repair, restore or rebuild replace the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) abovedamaged Improvements.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
Casualty. (a) If all or any part of the Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyeddestroyed by casualty, Tenant shall promptly notify Landlord thereof, and shall, with reasonable promptness and diligence, rebuild, replace and repair any damage or destruction to the Property, at its expense, in whole or conformity with the requirements of Article 5, in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer shall give prompt notice thereof such manner as to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild restore the same to be of at least equal value and of substantially the same character condition, as nearly as possible, as existed prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put casualty and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty there shall be deemed a Property Protection Advance and be secured hereby and no abatement of Basic Rent or Additional Rent. Proceeds of casualty insurance of $100,000 or less shall be reimbursed by the applicable Issuer paid to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the lossTenant. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts $100,000 shall be disbursed held in escrow by Landlord (or by Lender if requested by Lender) Lender and paid to Tenant, but only against certificates of Tenant and appropriate lien waivers delivered to Landlord or Lender from time to time as such work or repair progresses, each such certificate describing the work or repair for which Tenant is requesting payment and the cost incurred by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement Tenant in connection therewith and rebuilding, (2) stating that Tenant has not theretofore received payment for such work and has sufficient funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds remaining to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers work free of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as liens or claims. Any proceeds remaining after Tenant has repaired the Property Manager shall be delivered to Tenant but only to the extent that the aggregate amount of such proceeds so remaining and all amounts theretofore paid to Tenant pursuant to this sentence do not exceed $100,000. If such aggregate amounts exceed $100,000, the excess may reasonably require be retained by Landlord and approveapplied in reduction of the principal amount of the indebtedness secured by any Permitted Encumbrance or paid to Tenant at Landlord's sole option with the consent of Lender. If any such amount is applied to reduce the principal amount of indebtedness secured by the Property, the monthly reduction in debt service payments shall be applied dollar for dollar as a reduction of the Basic Rent due hereunder. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior made to disbursement Tenant if any default or Event of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, Default shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds have happened and be applied to the payment of the Notes as provided in subparagraph (iii)(A) abovecontinuing under this Lease.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 2 contracts
Samples: Lease Agreement (Source Interlink Companies Inc), Lease Agreement (Source Interlink Companies Inc)
Casualty. If any act or occurrence of any kind or nature (including any casualty for which insurance was not obtained or obtainable) shall result in material damage to or destruction of the Project (such event being called a “Casualty Loss”), Borrower shall give prompt written notice thereof to Lender. All insurance proceeds paid or payable in connection with such Casualty Loss shall be paid to Lender. Lender shall have the right either to (a) If any Property or Improvements place all insurance proceeds received in connection with a Hybrid Lease such Casualty Loss in the Loss Proceeds Account for the benefit of Lender and Borrower to be used to restore, repair or replace and rebuild the Project as nearly as possible to its value, condition and character immediately prior to such Casualty Loss, or (b) apply all insurance proceeds in connection with such Casualty Loss to the payment of the Obligations in such order as Lender may elect; provided, however, that if (i) no Potential Default or Event of Default shall have occurred and be materially damaged continuing, (ii) Borrower provides evidence satisfactory to Lender of Borrower’s ability to pay all amounts becoming due under this Loan Agreement during the pendency of any restoration or destroyedrepairs to or replacement of the Project, and (iii) Lender determines, in whole its reasonable discretion, that either (x) the cost of restoring the Project, as reasonably estimated by Xxxxxx, will not exceed $50,000.00 or in part(y) if the cost of restoring the Project, as reasonably estimated by fire or other casualty (an “Insured Casualty”)Xxxxxx exceeds $50,000.00, that the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed proceeds are sufficient to restore, repair, replace or and rebuild the same Project as nearly as possible to be of at least equal value its value, condition and of substantially the same character as immediately prior to such damage or destructionCasualty Loss, all or, if the insurance proceeds are insufficient for such purpose, if Borrower provides additional sums to Lender’s satisfaction so that the aggregate of such sums and the insurance proceeds will be sufficient for such purpose, the insurance proceeds, together with additional sums provided by Borrower, shall be placed in the Loss Proceeds Account for the benefit of Lender and Borrower to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee used to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restorationrestore, repair, replacement or rebuildingreplace and rebuild the Project as nearly as possible to its value, condition and character immediately prior to such Issuer Casualty Loss, and any withdrawals from such Loss Proceeds Account shall not be required subject to perform such the satisfaction of all conditions imposed by Xxxxxx using Lender’s standard construction loan advance procedures. Borrower hereby covenants to diligently prosecute any restoration, repairrepairs or replacement of the Project undertaken by or on behalf of Grantor pursuant to this Section 4.23, replacement or rebuilding, provided, further, and agrees that all such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty work shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager conducted pursuant to the terms written contracts, subject to Xxxxxx’s prior written approval of the Indenture.
(b) In case such contracts, and free and clear of loss all mechanic’s or damages to a Property not securing a Mortgage Loan materialmen’s or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) other liens or lien claims arising from such work. In the event of an Insured Casualty that does not exceed any insurance proceeds remain following the greater of (a) $100,000.00 restoration, repair or (b) five percent (5%) replacement of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such caseProject, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with proceeds shall be applied against the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, Obligations in accordance with the terms of the Indenture and this Loan Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 2 contracts
Samples: Loan Agreement (Sky Harbour Group Corp), Loan Agreement (Sky Harbour Group Corp)
Casualty. (a) If any Property the Lessee Assets and the Additional Improvements are destroyed or Improvements in connection with damaged (each, a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured CasualtyCasualty Event”), the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment opinion of Lessee, such Casualty Event materially and adversely affects Lessee’s use and operation of the Property Manager Lessee Assets, then Lessee shall have the Property can right, within 180 days after the occurrence of such Casualty Event, to terminate this Lease by written notice to Lessor. In the event this Lease is terminated pursuant to this Section 7.3, (i) all charges paid or owing hereunder shall be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment prorated as of the impact effective date of such termination, (ii) Lessee shall be entitled to any insurance proceeds applicable to the Lessee Assets and the Additional Improvements, and (iii) Lessee shall, in good faith and with due diligence, remove all Lessee Assets and Additional Improvements from the Leased Premises, and repair and restore any damage to the Leased Premises or the remainder of the termination of any Leases due to Xxxxxxx City Complex caused by such Insured Casualty) removal, at Lessee’s sole cost and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereofexpense.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(vb) In the event Lessee does not timely elect to terminate this Lease following the applicable Issuer is entitled occurrence of a Casualty Event in accordance with Section 7.3(a), Lessee shall repair and restore any damaged or destroyed Lessee Assets and/or Additional Improvements to reimbursement out of substantially the amounts held by the Indenture Trustee, condition in which such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made Lessee Assets and/or Additional Improvements existed immediately prior to the final completion of the restoration, repair, replacement applicable Casualty Event. Such repair and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds restoration by Lessee shall be disbursed prior to disbursement of such proceeds; performed in good faith and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds availabledue diligence, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence Lessee’s receipt of subparagraph (iv) aboveany required building or construction permits.
(c) Notwithstanding anything contained herein If, notwithstanding Section 7.3(b), Lessee fails to act in good faith or to use due diligence to repair and restore the Lessee Assets and Additional Improvements to the contrary required condition within a reasonable time, then (including in Section 3.20 belowi) Lessor shall have the right to take such actions as are necessary or reasonable to effect such repair and restoration (and Lessee shall take all actions reasonably necessary to facilitate Lessor’s actions), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation and insurance proceeds with respect to any such Property, the related proceeds remaining repair or restoration work shall be applied payable to Lessor, (ii) Lessor shall have the right to immediately terminate this Lease upon written notice to Lessee, (iii) Lessee shall be obligated to use any insurance proceeds actually received by Lessee to reasonably clean up the Lessee Assets, Additional Improvements and Leased Premises and (iv) Lessor shall have the option to purchase the Lessee Assets and Additional Improvements for the Purchase Price (the “Casualty Purchase Option”), as determined in accordance with Section 7.3(d).
(d) If Lessor elects to exercise the related Loan DocumentsCasualty Purchase Option, Lessor shall notify Lessee in writing (the “Option Notice”). Promptly thereafter, Lessor and Lessee shall engage a mutually-acceptable independent appraiser with experience in valuing petrochemical production assets to determine the fair market value of the Lessee Assets and the Additional Improvements (the “Fair Market Value”), which is the price at which a willing buyer would be willing to buy, and a willing seller would be willing to sell, each under no compulsion, the Lessee Assets and Additional Improvements in their then-current condition. The closing of the purchase and sale of the Lessee Assets and Additional Improvement shall occur on the closing date set forth in the Option Notice (the “Option Closing Date”), which date shall not be more than 90 days after Lessor’s delivery of the Option Notice. At such closing, (i) Lessee shall deliver such duly executed and, if applicable, acknowledged, conveyances, deeds, assignments, bills of sale and other documents and instruments as are required to convey and transfer the Lessee Assets and Additional Improvements to Lessor, each of which shall include a special warranty of title or similar warranty of claims and encumbrances created or existing by, through or under Lessee and its Affiliates, but otherwise without warranty and (ii) Lessor shall deliver to Lessee, by wire transfer or other immediately available funds, the Purchase Price. As used herein, the “Purchase Price” means the Fair Market Value, less any costs and expenses incurred by Lessor in connection with the restoration and repair of the Lessee Assets and Additional Improvements prior to the Option Closing Date (excluding costs and expenses for which Lessor has actually received insurance proceeds).
Appears in 2 contracts
Samples: Site Lease Agreement (Westlake Chemical Partners LP), Site Lease Agreement (Westlake Chemical Partners LP)
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 any material damage to or (b) five percent (5%) destruction of the Fair Market Value Mortgaged Property or any part thereof, Debtor will promptly give written notice to Mortgagee, generally describing the nature and extent of such damage or destruction. No damage to or destruction of the applicable Mortgaged Property or Improvements shall relieve Debtor of its obligation to pay any monetary sum due under the Loan Documents at the time and in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without manner provided in the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related LeaseLoan Documents.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 any damage to or (b) five percent (5%) destruction of the Fair Market Value of the applicable Properties Mortgaged Property or Improvements in connection with a Hybrid Leaseany part thereof, then and in that eventDebtor, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with whether or not the insurance company proceeds, if any, on account of such damage or companies on destruction shall be sufficient for the amount to be paid on purpose, at its expense, shall promptly commence and complete the loss and shall immediately deposit such amounts received Restoration or prepay the Note in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, full in accordance with the terms provisions of the Indenture and this AgreementNote with respect thereto.
(iii) In the event Insurance proceeds received by Mortgagee and Debtor on account of an Insured Casualty where the loss is in an aggregate amount more than the greater any occurrence of (a) $100,000.00 damage to or (b) five percent (5%) destruction of the Fair Market Value of Mortgaged Property or any part thereof, less the applicable Properties or Improvements in connection with a Hybrid Leasecosts, fees and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by Mortgagee and Debtor in the Property Manager) collection thereof, including, without limitation, adjuster's fees and expenses and attorneys' fees and expenses (the "Net Insurance Proceeds"), shall be collected paid to (1) Debtor if the amount of such Net Insurance Proceeds is less than $25,000 and applied by Debtor toward the Property Managercost of the Restoration, and promptly delivered (2) Mortgagee if the amount of such Net Insurance Proceeds is $25,000 or greater. Net Insurance Proceeds paid to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and Mortgagee shall be distributed held and disbursed by Mortgagee, or as Mortgagee may from time to time direct, to prepay the applicable Issuer Note upon request of Debtor pursuant to Section 3.01(a)(ii) above, or as the Restoration progresses, to pay or reimburse such Issuer or the subject Tenant Debtor for the cost of restoringthe Restoration, repairingupon written request of Debtor accompanied by evidence, replacing satisfactory to Mortgagee, that (v) the Restoration is in full compliance with all applicable laws, regulations, restrictions and requirements, whether governmental or rebuilding private, (w) the Property amount requested has been paid or Improvements is then due and payable and is properly a part of such cost, (x) there are no mechanics' or similar liens for labor or materials theretofore supplied in connection with a Hybrid Lease or part thereof subject the Restoration, (y) if the estimated cost of the Restoration exceeds the Net Insurance Proceeds, Debtor has deposited into an escrow satisfactory to Mortgagee such excess amount, which sum will be disbursed pursuant to escrow instructions satisfactory to Mortgagee, and (z) the Insured Casualtybalance of such Net Insurance Proceeds, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof together with the Indenture Trustee in advance) of such restoringfunds deposited into escrow, repairingif any, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
preceding subsection (iv) Subject to clauses (i)-(iii) in this Section 3.19(by), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to after making the payment requested will be sufficient to pay the balance of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value Restoration. Upon receipt by Mortgagee of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it that the Restoration has been completed and the cost thereof paid in full, and that there are no mechanics' or similar liens for labor or materials supplied in connection therewith, the balance, if any, of such Net Insurance Proceeds shall be paid to Debtor. If an Event of Default has occurred and is continuing at the time of the estimated cost damage or destruction to the Mortgaged Property, all Net Insurance Proceeds shall be paid to Mortgagee, and Mortgagee may retain and apply the Net Insurance Proceeds toward the Obligations whether or not then due and payable, in such order, priority and proportions as Mortgagee in its discretion shall deem proper, or to cure such Event of completion of the restorationDefault, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s optionin Mortgagee's discretion, assurances reasonably satisfactory Mortgagee may pay such Net Insurance Proceeds in whole or in part to the Property Manager that such funds are available, sufficient in addition Debtor to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for applied toward the cost of completion the Restoration. If Mortgagee shall receive and retain Net Insurance Proceeds, the lien of this Mortgage shall be reduced only by the amount received and retained by Mortgagee and actually applied by Mortgagee in reduction of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) aboveObligations.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 2 contracts
Samples: Mortgage, Assignment of Rents and Leases, Security Agreement and Fixture Filing (Family Steak Houses of Florida Inc), Mortgage, Assignment of Rents and Leases, Security Agreement and Fixture Filing (Family Steak Houses of Florida Inc)
Casualty. (a) If any Property COUNTY’s Communications Facility or Improvements in connection with a Hybrid Lease shall be materially improvements are damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”)casualty, the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer COUNTY shall not be required to perform such restorationrepair or replace the Communications Facility or any improvements made by COUNTY, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as and COUNTY may be reasonably required terminate this Agreement by giving written notice to put and maintain the Improvements in a safe and secure conditionNBU. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty Termination shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms Section 17 of the Indenturethis Agreement.
(b) In case the event the Tower (excluding any damage the repair of loss which is required to be completed by COUNTY) is damaged to the extent of twenty-five percent (25%) or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any more of the cost of replacement thereof (whether or not the Leased Property Insurance Policies, the following provisions shall apply:
is damaged) and such damage (i) In occurs during the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) last two years of the Fair Market Value Term (taking into account any extensions of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, Term by COUNTY in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 ), or (bii) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can NBU, cannot reasonably be repaired or restored within twenty-four a period of one hundred and eighty (24180) months to an economic unit not materially less valuable (including an assessment days following commencement of the impact of the termination of any Leases due to such Insured Casualty) repair or restoration using standard working methods and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecuteprocedures, or cause the applicable Tenant to commence (iii) is not, or would not have been, covered by a standard fire and diligently prosecuteextended coverage insurance policy, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for is compensable with insurance proceeds from an Insured Casualty all or Condemnation a significant portion of which is required to be (A) applied paid to the payment NBU’s mortgagee in reduction of the Notes without Make Whole Amountindebtedness secured by any Mortgage encumbering the Tower or Tower Site, (B) applied to reimburse NBU shall have the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualtyright and option, in the manner set forth below or (C) provided that such amounts are greater than or equal its sole discretion, to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, terminate this Agreement upon the Property Manager being furnished with (1) evidence satisfactory delivery of notice thereof to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed COUNTY within ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property days after the occurrence of such damage or destruction. If such notice is given, NBU agrees to use its reasonable efforts to permit COUNTY to place temporary transmission facilities at an Insured Casualtyalternative location acceptable to COUNTY until such time as COUNTY is able to secure a replacement transmission location for the Leased Property. If NBU elects to rebuild the Tower, NBU agrees to use its reasonable efforts to permit COUNTY to place temporary transmission facilities at an alternative location acceptable to COUNTY until such time as the applicable Issuerrebuilding is completed. In any case, at COUNTY agrees that it will use its reasonable efforts to avoid interfering with NBU’s efforts to rebuild the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) aboveTower.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 2 contracts
Samples: Interlocal Agreement, Interlocal Agreement
Casualty. (a) If Sellers shall notify the Buyer as soon as reasonably practicable after obtaining Knowledge of the occurrence of any Force Majeure Event with respect to any Casablanca Property and of any material damage or Improvements in connection with destruction (a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, “Casualty Event”) by fire or other casualty (an “Insured Casualty”)that is suffered by any Casablanca Property on or before the Closing Date or the HUD Portfolio Closing Date, as appropriate, which notice shall include a reasonably detailed description of the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence extent of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destructiondestruction and of the relevant Casualty Event. If, all on or prior to be effected the relevant Closing Date, any Casablanca Property shall have been damaged or destroyed by a Casualty Event or a Force Majeure Event, then the Buyer shall proceed to effect the relevant Closing in accordance with applicable law; provided which such Casablanca Property is included, in which event the provisions of Sections 12.1(b) shall apply.
(b) With respect to any Casablanca Subsidiary that if the owns an Casablanca Property Manager that has been damaged by a Casualty Event or a Force Majeure Event:
(i) Sellers shall not direct (A) adjust and settle any insurance claims with respect to such damaged Casablanca Property, or (B) enter into any construction or other contract for the Indenture Trustee repair or restoration of such damaged Casablanca Property, in each case, without the Buyer’s prior written consent (except no such consent shall be necessary to make repair or restore any amounts received emergency or hazardous condition at such damaged Casablanca Property), which consent shall not be unreasonably withheld, conditioned or delayed;
(ii) at the relevant Closing, Sellers shall (A) pay over to the Buyer the amount of any insurance or other proceeds, to the extent collected by Sellers or any Casablanca Subsidiary in connection with such Insured Casualty available Event or Force Majeure Event, less the amount of the actual and reasonable unreimbursed expenses incurred by Sellers or any Casablanca Subsidiary in connection with collecting such proceeds and making any repairs to reimburse the applicable Issuer for Casablanca Property occasioned by such Casualty Event or Force Majeure Event pursuant to any contract (provided that such contract was reasonably approved by the costs Buyer as required by this Section 12.1) and (B) assign to the Buyer in form reasonably satisfactory to the Buyer all of Sellers’ right, title and interest in and to (or provide written confirmation from Sellers of an Casablanca Subsidiary’s right to) any insurance proceeds that are uncollected at the time of the subject Closing and that may be paid in respect of such restorationCasualty Event or Force Majeure Event. Sellers shall cooperate with the Buyer in the collection of such proceeds, repairwhich obligation shall survive the subject Closing; and
(iii) The Final Purchase Price shall be reduced by the amount by which:
(1) the reasonably estimated post-closing cost of repair and restoration of all of the Damaged Properties,
(2) the remaining balance of the insurance proceeds assigned pursuant to (ii)(A) above plus the uncollected insurance proceeds or tenant contributions to the cure reasonably expected to be collected after the relevant Closing by the Casablanca Subsidiary and described in (ii)(B) above; provided, replacement or rebuildinghowever, that if such Issuer amount in the aggregate is less than One Million Dollars ($1,000,000), then (a) no reduction shall not be required made to perform the Final Purchase Price and (b) such restoration, repair, replacement or rebuilding, amount shall count against the Deductible Amount for purposes of indemnification claims under Section 11.2 without regard to the limitations set forth in Section 11.2(c)(i); provided, further, that if the Deductible Amount has otherwise been reached, then such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in reduction (or a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer reduction to the Property Manager pursuant to the terms extent of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of excess over the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property ManagerDeductible Amount) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed made to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereofFinal Purchase Price.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 2 contracts
Samples: Option Agreement (Capitalsource Inc), Option Agreement (Omega Healthcare Investors Inc)
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”)casualty, the applicable Issuer Borrowers shall give prompt written notice thereof to Lender.
(a) In the Indenture Trustee case of a loss covered by Policies, Lender may: (A) settle and adjust any claim with the Property Managerprior consent of Borrowers, not to be unreasonably withheld or (B) allow Borrowers to agree with the insurance company or companies on the amount to be paid upon the loss. Following However, if no Event of Default shall have occurred and be continuing, Borrowers may adjust losses aggregating not in excess of Five Hundred Thousand Dollars ($500,000.00) if such adjustment is carried out in a competent and timely manner, but in any case that Lender shall be, and is hereby, authorized to collect and receipt for any such Proceeds. The expenses incurred by Lender in the occurrence adjustment and collection of Proceeds shall become part of the Debt, shall be secured by the Mortgages and shall be reimbursed by Borrowers to Lender on demand.
(b) In the event of an Insured Casualty, the applicable Issuer Proceeds collected shall, at the option of Lender in its sole discretion, be applied to the payment of the Debt or applied to reimburse the affected Borrower for the cost of restoring, repairing, replacing or rebuilding its Property or the part thereof subject to the Insured Casualty, in the manner set forth below. In no case shall promptly any such application reduce or postpone any payments otherwise required pursuant to the Notes.
(c) In the event that Proceeds, if any, shall be made available to a Borrower for the restoring, repairing, replacing or shall promptly cause the Tenant or rebuilding of its Property, such Borrower to) proceed hereby covenants to restore, repair, replace or rebuild the same its Property to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable lawlaw and plans and specifications approved in advance by Lender; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, furtherhowever, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant Borrower shall pay all costs (and if required by the Property ManagerLender, such Issuer shall deposit the total thereof with the Indenture Trustee Lender in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds Proceeds required to be made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(vd) In the event the applicable Issuer a Borrower is entitled to reimbursement out of the amounts Proceeds held by the Indenture TrusteeLender, such amounts Proceeds shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager Lender being furnished with with: (1A) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding; (B) funds, (2) funds or, at the Property Manager’s Lender's option, assurances reasonably satisfactory to the Property Manager Lender that such funds are available, sufficient in addition to the proceeds Proceeds to complete the proposed restoration, repair, replacement and rebuilding, ; and (3C) such architect’s 's certificates, waivers of lienlien for work previously performed or contemporaneously funded, contractor’s 's sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager Lender may reasonably require and approve. Lender may, in any event, require that all plans and specifications for such restoration, repair, replacement and rebuilding be submitted to and approved by Lender prior to commencement of work (which approval shall not be unreasonably withheld). No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds . Funds other than proceeds Proceeds shall be disbursed prior to disbursement of such proceeds; Proceeds, and at all times, times the undisbursed balance of such proceeds Proceeds remaining in the hands of the Indenture TrusteeLender's possession, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager Lender by or on behalf of such Issuer Borrowers for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager Lender to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or and claims for of lien. Any surplus which may remain out of proceeds Proceeds held by the Indenture Trustee Lender after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred delivered to Borrowers, on the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make condition that such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied restoration was performed in accordance with the related Loan Documentsprovisions of this Section and no Event of Default or Incipient Default has occurred and is continuing.
Appears in 2 contracts
Samples: Loan Agreement (Clubcorp Inc), Loan Agreement (Clubcorp Inc)
Casualty. (a) If any the Property or Improvements in connection with shall sustain a Hybrid Lease shall be materially damaged or destroyedCasualty, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer Borrower shall give prompt notice thereof of such Casualty to Agent and Borrower shall promptly commence and diligently prosecute to completion the repair and restoration of the Property as nearly as possible to the Indenture Trustee and condition the Property Manager. Following was in immediately prior to such Casualty (a “Restoration”) and otherwise in accordance with Section 5.3, it being understood, however, that Borrower shall not be obligated to restore the occurrence Property to the precise condition of an Insured Casualtythe Property prior to such Casualty provided the Property is restored, to the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restoreextent practicable, repair, replace or rebuild the same to be of at least equal value quality and of substantially the same character as prior to such damage or destruction, the Casualty. Borrower shall pay all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restorationRestoration whether or not such costs are covered by insurance. Agent may, repair, replacement or rebuilding, such Issuer but shall not be required to perform such restorationobligated to, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case make proof of loss or damages to a Property if not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered made promptly by any of the Property Insurance Policies, the following provisions shall apply:
(i) Borrower. In the event of an Insured a Casualty that where the loss does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid LeaseRestoration Threshold as reasonably determined by Agent, the applicable Issuer Borrower may settle and adjust any claim without the consent such claim; provided that (a) no Event of the Property Manager Default has occurred and agree with the insurance company or companies on the amount to be paid upon the lossis continuing and (b) such adjustment is carried out in a commercially reasonable and timely manner. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event of a Casualty where the loss exceeds the Restoration Threshold as reasonably determined by Agent or if an Insured Casualty shall exceed the greater Event of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid LeaseDefault then exists, then and in that event, the applicable Issuer Borrower may settle and adjust any such claim without only with the consent of Agent (which consent shall not be unreasonably withheld or delayed) and Agent shall have the Property Manager and agree with the insurance company or companies on the amount opportunity to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Accountparticipate, at Borrower’s cost, in accordance with any such adjustments. Notwithstanding any Casualty, Borrower shall continue to pay the terms of Debt at the Indenture time and in the manner provided for its payment in the Note and in this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 2 contracts
Samples: Loan Agreement (Black Creek Diversified Property Fund Inc.), Loan Agreement (Black Creek Diversified Property Fund Inc.)
Casualty. (a) If any the Mortgaged Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “"Insured Casualty”"), the applicable Issuer Oneida shall give prompt notice thereof to the Indenture Trustee and the Property ManagerMortgagee. Following the occurrence of an Insured Casualty, the applicable Issuer Oneida, regardless of whether insurance proceeds are available, shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager Mortgagee in the adjustment and collection of any amounts received in connection with an Insured Casualty insurance proceeds shall be deemed a Property Protection Advance become part of the Indebtedness and be secured hereby and shall be reimbursed by the applicable Issuer Oneida to the Property Manager pursuant to the terms of the IndentureMortgagee upon demand.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease500,000, the applicable Issuer Mortgagor may settle and adjust any claim without the consent of the Property Manager Mortgagee and agree with the insurance company or companies on the amount to be paid upon the loss; provided that such adjustment is carried out in a competent and timely manner. In such case, such Issuer Mortgagor is hereby authorized to collect and to distribute receipt for any such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Leaseinsurance proceeds.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease500,000, then and in that event, the applicable Issuer Mortgagee may settle and adjust any claim without the consent of the Property Manager Mortgagor and agree with the insurance company or companies on the amount to be paid on the loss and the proceeds of any such policy shall immediately deposit such amounts received be due and payable solely to Mortgagee and held in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, escrow by Mortgagee in accordance with the terms of the Indenture and this AgreementMortgage.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more less than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, 500,000 and if, in the reasonable judgment of Mortgagee, the Property Manager the Mortgaged Property can be restored within twenty-four six (246) months and prior to the maturity of the Notes to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, and after such restoration will adequately secure the outstanding balance of the Indebtedness, then, if no Event of Default under the Indenture (as hereinafter defined) shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty proceeds of insurance (after reimbursement of any reasonable expenses incurred by the Property ManagerMortgagee) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for applied towards the cost of restoring, repairing, replacing or rebuilding the Mortgaged Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer . Oneida hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, prosecute such restoring, repairing, replacing or rebuilding; providedprovided always, that such Issuer or the subject Tenant Oneida shall pay all costs (and if required by the Property ManagerMortgagee, such Issuer Oneida shall deposit the total thereof with the Indenture Trustee Mortgagee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds of insurance made available pursuant to the terms hereof.
(iv) Subject to Except as provided above in clauses (i)-(iiiii) in and (iii) of this Section 3.19(b)Paragraph 4, an Issuer may elect for the proceeds from an of insurance collected upon any Insured Casualty or Condemnation to shall, at the option of Mortgagee in its sole discretion, be (A) applied to the payment of the Notes without Make Whole Amount, (B) Indebtedness or applied to reimburse the applicable Issuer or the subject Tenant Oneida for the cost of restoring, repairing, replacing or rebuilding the Mortgaged Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicablebelow.
(v) In the event the applicable Issuer Oneida is entitled to reimbursement out of the amounts insurance proceeds held by the Indenture TrusteeMortgagee, such amounts proceeds shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager Mortgagee being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s Mortgagee's option, assurances reasonably satisfactory to the Property Manager Mortgagee that such funds are available, sufficient in addition to the proceeds of insurance to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s 's certificates, waivers of lien, contractor’s 's sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager Mortgagee may reasonably require and approve. Mortgagee may, in any event, require that all plans and specifications for such restoration, repair, replacement and rebuilding be submitted to and approved by Mortgagee prior to commencement of work. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.to
Appears in 2 contracts
Samples: Mortgage, Assignment of Leases and Rents, and Security Agreement (Oneida LTD), Mortgage, Assignment of Leases and Rents, and Security Agreement (Oneida LTD)
Casualty. (a) If any Individual Property or Improvements in connection with shall sustain a Hybrid Lease shall be materially damaged or destroyedCasualty, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer Borrower shall give prompt notice thereof of such Casualty to Lender and shall promptly commence and diligently prosecute to completion the repair and restoration of such Individual Property as nearly as possible to the Indenture Trustee condition such Individual Property was in immediately prior to such Casualty (a “Restoration”) and otherwise in accordance with Section 5.3 hereof, it being understood, however, that Borrower shall not be obligated to restore such Individual Property to the precise condition of such Individual Property Manager. Following prior to such Casualty provided such Individual Property is restored, to the occurrence of an Insured Casualtyextent practicable, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, the Casualty. Borrower shall pay all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restorationRestoration whether or not such costs are covered by insurance. Lender may, repair, replacement or rebuilding, such Issuer but shall not be required to perform such restorationobligated to, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case make proof of loss or damages to a Property if not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered made promptly by any of the Property Insurance Policies, the following provisions shall apply:
(i) Borrower. In the event of an Insured a Casualty that where the loss does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid LeaseRestoration Threshold for such Individual Property, the applicable Issuer Borrower may settle and adjust any claim without the consent such claim; provided that (a) no Event of the Property Manager Default has occurred and agree with the insurance company or companies on the amount to be paid upon the lossis continuing and (b) such adjustment is carried out in a commercially reasonable and timely manner. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event of a Casualty where the loss exceeds the Restoration Threshold for such Individual Property or if an Insured Casualty shall exceed the greater Event of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid LeaseDefault then exists, then and in that event, the applicable Issuer Borrower may settle and adjust any such claim without only with the consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the Property Manager and agree with the insurance company or companies on the amount opportunity to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Accountparticipate, at Borrower’s cost, in accordance with any such adjustments. Notwithstanding any Casualty, Borrower shall continue to pay the terms of Debt at the Indenture time and in the manner provided for its payment in the Note and in this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 2 contracts
Samples: Loan Agreement (Ashford Hospitality Prime, Inc.), Loan Agreement (Supertel Hospitality Inc)
Casualty. (a) If all or any part of the Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyeddestroyed by a casualty covered by insurance, Lender is authorized and empowered (but not obligated or required) to make proof of loss, damage or destruction under any policies of insurance required under this Mortgage. All proceeds of insurance shall be paid to Lender and shall be applied first to the payment of all costs and expenses (including without limitation reasonable attorneys' fees and expenses) incurred by Lender in obtaining such proceeds, and second, at the option of Lender, either to the payment of the Debt, whether or not due, in whole such order as Lender may elect, or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer shall give prompt notice thereof to the Indenture Trustee restoration, repair or replacement of the Property. If Lender elects, in its sole discretion, to apply the insurance proceeds to the restoration, repair or replacement of the Property, such proceeds shall be disbursed to or for Borrower's account as work progresses pursuant to a construction and disbursing agreement in form and content satisfactory to Lender in its sole discretion. The election by Lender to apply the insurance proceeds to the restoration, repair or replacement of the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct affect the Indenture Trustee lien of this Security Instrument or affect or reduce the sums secured hereby (including but not limited to make any amounts received the continuing accrual of interest under the Note); and this Security Instrument shall remain in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restorationfull force and effect, repair, replacement or rebuilding, such Issuer and Borrower shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager excused in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenturepayment or performance thereof.
(b) In case of loss If all or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any part of the Property Insurance Policiesshall be damaged or destroyed by a casualty (whether or not covered by insurance), Borrower shall immediately give written notice thereof to Lender and the following provisions appropriate insurer, if any, and Borrower shall apply:
(i) In promptly and diligently, at Borrower's sole cost and expense and regardless of whether the event of an Insured Casualty that does not exceed insurance proceeds, if any, shall be sufficient or available for the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Leasepurpose, the applicable Issuer may settle restore, repair and adjust any claim without the consent of rebuild the Property Manager and agree with to the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions equivalent of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall its condition immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) abovecasualty.
(c) Notwithstanding anything contained herein If any work required to the contrary be performed under this Section shall involve an estimated expenditure of more than Ten Thousand and No/100 Dollars (including in Section 3.20 below$10,000.00), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any no such Property, the related proceeds work shall be applied undertaken until plans and specifications thereof, prepared by an architect satisfactory to Lender, have been submitted to and approved in accordance with the related Loan Documentswriting by Lender.
Appears in 2 contracts
Samples: Convertible Promissory Notes (Minrad International, Inc.), Mortgage and Security Agreement (Polymer Research Corp of America)
Casualty. (a) If any Property or the Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, totally destroyed by fire or other casualty (an “Insured Casualty”)by extended coverage perils, the applicable Issuer they shall give prompt notice thereof be repaired or restored according to the Indenture Trustee provisions contained in this Section, at the cost and the Property Managerexpense of Lessee. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer Lessor shall not be required to perform contribute in any way toward such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty involved shall be deemed repaired to a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer condition which is comparable as nearly as possible to their condition just prior to the Property Manager pursuant damage, subject to applicable law at the terms of the Indenturetime.
(b) In case the event of loss a partial or damages total destruction of the Improvements on the Leased Premises, Lessee shall repair, restore or reconstruct the affected Improvements within one hundred eighty (180) days after the receipt by Lessee of fire insurance proceeds, subject to force majeure, or within a reasonable additional extension period which may be required, to a Property not securing a Mortgage Loan or Improvements condition comparable to their condition just prior to such destruction, subject to applicable law at the time. Lessor shall promptly endorse any checks payable to Lessor in connection with a Hybrid Lease covered by such proceeds and shall deliver the same to Lessee or the Insurance Trustee, as the case may be. The proceeds of any of the Property Insurance Policies, the following provisions such insurance shall applybe payable as follows:
(i) In to Lessee to the event extent of an Insured Casualty that does proceeds not exceed exceeding $_____________, which proceeds Xxxxxx agrees shall be received in trust to pay the greater costs of (a) $100,000.00 restoration or (b) five percent (5%) shall be payable by Lessee, if it so elects, to its sublessee in trust to pay the cost of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Leaserestoration.
(ii) In the entire proceeds, in the event an Insured Casualty shall the proceeds exceed $____________, to the Insurance Trustee.
(c) Upon receipt by the Insurance Trustee of:
(i) A certificate of Lessee (a "Repair Certificate'") dated not more than twenty (20) days prior to the date of such receipt (A) requesting the payment of a specified amount of such insurance monies; (B) describing in reasonable detail the work and materials applied to the restoration or replacement of the damaged or destroyed Improvements since the date of the last Repair Certificate of Lessee; (C) stating that such specified amount does not exceed the greater cost of such work and materials; and (aD) $100,000.00 stating that such work and materials have not previously been made the basis of any request for or any withdrawal of money;
(bii) five percent A certificate of an independent engineer or an independent architect designated by Xxxxxx, who in either case shall be duly licensed and shall be approved by Lessor (5%which approval shall not be unreasonably withheld, conditioned or delayed) stating (A) that the work and materials described in the accompanying certificate of Lessee were satisfactorily performed and furnished and were necessary, appropriate or desirable to the restoration or replacement of the Fair Market Value of the applicable Properties damaged or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Accountdestroyed Improvements, in accordance with the terms plans and specifications therefor; (B) that the amount specified in such Lessee's Repair Certificate is not in excess of the Indenture cost of such work and this Agreement.materials; and (C) the estimated additional amount, if any, required to complete the restoration or replacement of the damaged or destroyed Improvements;
(iii) In A written opinion of counsel, who may be counsel for Lessee, reasonably satisfactory to Lessor, dated not earlier than Lessee's Repair Certificate, or, at the event option of Lessee, an Insured Casualty where endorsement of Lessor's title insurance policy or an updated title insurance policy from a title insurance Lessee acceptable to Lessor, to the loss effect that, as of the date thereof the Leased Premises is in an aggregate amount more not subject to any mechanics' lien or other lien or encumbrance (other than the greater Leasehold Mortgage) caused by Lessee, its subcontractors, or their respective employees, contractors or agents; the Insurance Trustee shall pay to Lessee the amount requested; provided, however, that the balance of (a) $100,000.00 or (b) five percent (5%) insurance monies deposited with the Insurance Trustee shall not be reduced below the amount specified in such certificate of the Fair Market Value independent engineer or the independent architect as the amount required to complete the restoration or replacement of the applicable Properties damaged or Improvements destroyed Improvements. Each such payment shall be held by Lessee in connection with a Hybrid Lease, trust and if, in shall be used solely for the reasonable judgment payment of the Property Manager costs described in Xxxxxx's Repair Certificate (or to reimburse Lessee for any portion of such costs which Xxxxxx has advanced from its own funds). If there shall remain on deposit with the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment Insurance Trustee any balance of insurance monies after any damaged or destroyed portions of the impact Improvements shall have been completely restored or replaced, as evidenced by a certificate of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior independent engineer or independent architect delivered to the Insured CasualtyInsurance Trustee, thensuch balance of insurance monies shall be paid to Lessee, if provided no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection exist hereunder. Concurrently with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed Xxxxxx's delivery to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost Insurance Trustee of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess each of the net proceeds made available pursuant foregoing certificates and/or legal opinions, Lessee shall deliver duplicate copies thereof to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approveLessor. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary set forth in this subsection, the Insurance Trustee shall make no further payment of insurance proceeds to Lessee following receipt of a notice from Lessor that an Event of Default exists under this Agreement until and unless instructed by Lessor that such Event of Default has been cured. Lessor shall promptly endorse any checks payable to the order of Lessor in connection with such insurance proceeds and shall deliver the same to Lessee or to the Insurance Trustee, as the case may be.
(d) Anything contained hereinin this Section to the contrary notwithstanding, if in the event that either (i) a total or substantial destruction of the Project shall occur at any Permitted Lease time during the last two (2) years of the Term of this Agreement, or (ii) at any time during the Term a total or substantial destruction occurs but, by reason of a change in law, the Lessee is unable to build the Project as large as existed formerly and Lessee shall obligate notify Lessor that Lessee's Board of Directors has determined in good faith that the Tenant thereunder leasable area after reconstruction will not be sufficient to make the operation of the Project economically viable, Lessee may elect not to repair, restore or rebuild reconstruct the affected Property Improvements by sending written notice of such election to Lessor within ninety (90) days after the occurrence of an Insured Casualtydestruction shall have occurred. In the event that Lessee shall so elect not to repair, restore or reconstruct, the applicable Issuer, at the direction lease hereby created shall cease as of the Property Managerdate of said destruction, Lessee shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any pay all Rent due as of the Property Insurance Policies with respect to a Property securing a Mortgage Loan date of said destruction, and there shall be no further liability of either Party except for those obligations which expressly survive the expiration or any Condemnation with respect to any termination of this Agreement. In such Propertyevent, the related insurance proceeds shall be applied in accordance with the related Loan Documentsfollowing order of priority: To payment of the Leasehold Mortgage; Remainder to Lessor.
(e) In the event any restoration contemplated in this Section is required during the term of any sublease and the subcontractors thereunder is obligated therefor, provided such subcontractors does not exercise any right to terminate its sublease on account of the casualty necessitating such restoration, the provisions governing such casualty under the applicable sublease shall control provided that such sublease provisions provide for the restoration of the subleased Premises to a condition comparable to their condition immediately preceding such casualty, subject to applicable law at the time of such restoration.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
Casualty. Tenant shall give Landlord written notice of any fire or -------- other casualty occurring within the Premises on the next business day following such occurrence or Tenant's knowledge thereof, whichever is later. If the Premises or Project (a) If provided such damage to the Project would constitute an interference with Tenant's quiet enjoyment of the Premises), or any Property or Improvements in connection with a Hybrid Lease portion of either, shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”)covered by the insurance carried by Landlord hereunder and the cost of repairing such damage shall not be greater than 10% of the then full replacement cost thereof, the applicable Issuer shall give prompt notice thereof then, subject to the Indenture Trustee following provisions of this Article. Landlord shall repair the Premises and/or Project. If the Premises or Project shall be damaged (a) by fire or other casualty not covered by insurance carried by Landlord hereunder, (b) by fire or other casualty covered by insurance carried by Landlord hereunder and Landlord's mortgagee requires that such insurance proceeds be used to retire the Property Manager. Following mortgage debt, or (c) to an extent greater than 40% of the occurrence of an Insured Casualtythen full replacement cost thereof, then Landlord shall have the applicable Issuer shall promptly option (i) to repair or shall promptly cause reconstruct the Tenant damaged Premises or Borrower to) proceed Project to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character condition as immediately prior to such fire or other casualty, or (ii) to terminate this Lease by so notifying Tenant within one hundred twenty (120) days after the date of such fire or other casualty, such termination to be effective as of the date of such fire or other casualty. The Rent required to be paid hereunder shall be abated in proportion to the portion of the Premises, if any, which is rendered untenantable by fire or other casualty hereunder until repairs of the Premises are completed or if the Premises are not repaired, until the Expiration Date hereunder. Other than such rental abatement, no damages, compensation or claims shall be payable by Landlord for loss of the use of the whole or any part of the Premises, Tenant's personal property, or any inconvenience, loss of business, or annoyance arising from any such repair and reconstruction. If the damage results from the fault or destructionnegligence of Tenant, its agents, employees, licensees or invitees, Tenant shall not be entitled to any abatement or reduction of any Rent or other sums due hereunder, and such damage shall be repaired by Tenant, or at Landlord's option by Landlord, at Tenant's expense. If this Lease is terminated as provided in (c)(ii) above, all Rent shall be apportioned and paid up to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs date of such restoration, repair, replacement or rebuilding, such Issuer termination. Landlord shall not be required to perform such restorationrepair or replace any furniture, repairfurnishings, replacement or rebuilding, provided, further, other personal property that such Issuer shall take at its own expense such steps as Tenant may be reasonably required entitled to put remove from the Premises or any property constructed and maintain the Improvements in a safe and secure condition. The expenses incurred installed by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager or for Tenant pursuant to the terms of the Indenture.
(b) In case of loss Section 6.01 hereof or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding installations in excess of the net proceeds made available pursuant to the terms hereofBuilding Standard.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 2 contracts
Samples: Lease Agreement (Citysearch Inc), Lease Agreement (Ticketmaster Online Citysearch Inc)
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), damages the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and Premises or common areas of the Property Manager. Following necessary for Tenant’s use and occupancy of the occurrence Premises, whether or not such damage is the result of an Insured Casualty, the applicable Issuer shall promptly (negligence or shall promptly cause the willful misconduct of Tenant or Borrower to) proceed Tenant’s agents, officers, employees, contractors, licensees or invitees, and irrespective of any resulting period during which the Premises is rendered unusable by such damage, Tenant nonetheless shall not be entitled to restoreany reduction in Base Rent or any other rents due hereunder; such circumstance shall not give rise to any excuse, legal or otherwise, for Tenant’s continued obligations of payment and performance under this Lease and this Lease shall not thereby terminate; and Tenant shall be responsible to repair, reconstruct, replace or rebuild and restore at Tenant’s sole cost and expense, all parts and portions of the Premises and Property so effected by casualty so as to restore same to be its prior condition and state; provided, in its sole and absolute discretion, by election made within thirty (30) days after receipt of at least equal value written notice from Tenant of such casualty event, Landlord may instead elect to receive all insurance proceeds arising by reason thereof and of substantially to terminate the same character as prior Lease. If Landlord does not exercise the right to elect to receive such damage or destruction, all to be effected insurance proceeds and terminate this Lease in accordance with applicable law; provided that if the Property Manager this Section 11.1, then, as noted above this Lease shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant (subject to the terms of the Indenture.
(bthis Section 11.1) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements remain in connection with a Hybrid Lease covered by any of full force and effect and Tenant shall repair such damage and restore the Property Insurance Policies, and the following provisions shall apply:
(i) In Premises to substantially the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements same condition in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of which the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after Premises existed before the occurrence of an Insured Casualtysuch fire or other casualty without limiting such obligations to the amount of insurance proceeds available. Landlord shall not be obligated to make any repairs nor replacements nor to effectuate any restorations and shall have no liability for any damage to, nor have obligation to make any replacement of, any movable furniture, equipment, trade fixtures or personal property in the applicable IssuerPremises or upon the Property. Tenant shall, at Tenant’s sole cost and expense, repair and replace all such movable furniture, equipment, trade fixtures and personal property and any other parts or portions thereof. In the direction absence of Landlord’s election as aforesaid, this Lease shall not terminate notwithstanding any and every manner of casualty, including without limitation a total destruction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty Premises and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) aboveProperty.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 2 contracts
Samples: Industrial Lease (Amrep Corp.), Industrial Lease (Amrep Corp.)
Casualty. (a) If any Property Except as hereafter provided, if the Customer Area is wholly or Improvements in connection with a Hybrid Lease shall be materially partially destroyed or damaged or destroyed, in whole or in part, by fire or other casualty, Lessor shall restore the Customer Area with reasonable diligence; provided, however, that Lessor shall have no obligation to restore improvements not originally provided by Lessor or to replace any of Customer’s fixtures, furnishings, equipment, or personal property and Customer shall be responsible for refixturing the Customer Area and reinstalling its equipment. Lessor need not commence repairs until a substantial portion of the insurance proceeds are available and shall not be required to expend more than the actual insurance proceeds received. Proceeds of insurance payable with respect to a fire or other casualty (an “Insured Casualty”), shall be received and held by Lessor. In the applicable Issuer shall give prompt notice thereof event the Customer Area is destroyed or damaged by any fire or casualty not covered by the insurance maintained by Lessor or to the Indenture Trustee and extent of not less than 25% of the Property Manager. Following replacement cost thereof, or if the fire or casualty occurs within the last year of the Term, then Lessor or Customer shall have the option to terminate this Lease by giving notice to the other party within 60 days after the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, in which case Lessor shall retain all insurance proceeds with respect to the Customer Area as its own property. If neither Lessor nor Customer elects to terminate this Lease as provided above, this Lease shall continue in full force and effect, but any Lease Fees shall be effected equitably abated as determined in accordance with applicable law; provided Lessor’s reasonable discretion until the restoration is substantially complete. The provisions of this Agreement shall govern when this Agreement is terminable as a result of a fire or casualty and no other rule or statute on the subject applies. Notwithstanding anything herein to the contrary, in the event a Mortgagee requires that any insurance proceeds be applied to such indebtedness, then Lessor shall have the right to terminate this Lease by delivering written notice to Customer within 15 days after such requirement is made by any such holder, whereupon the Agreement shall end on the date of such notice as if the Property Manager shall not direct date of such notice were the Indenture Trustee to make any amounts received date originally fixed in connection with such Insured Casualty available to reimburse the applicable Issuer this Agreement for the costs expiration of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure conditionTerm. The expenses incurred by the Property Manager provisions of this Section are Customer’s sole and exclusive rights and remedies in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed a casualty. To the greater of (a) $100,000.00 or (b) five percent (5%) of extent permitted by applicable laws, Customer hereby waives the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of Arizona Revised Statutes § 33-343 and any other applicable existing or future law governing the related Lease.
(ii) In destruction or injury of a building by the elements or a similar cause permitting an abatement of Lease Fees or termination of a lease agreement in the event an Insured Casualty shall exceed the greater of (a) $100,000.00 damage or (b) five percent (5%) of the Fair Market Value of the applicable Properties destruction under any circumstances other than as provided in this Section or Improvements elsewhere in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 2 contracts
Samples: Lease and Master Services Agreement, Lease and Master Services Agreement (Newtek Business Services Inc)
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease In case following the execution hereof and prior to the expiration of the Term hereof the Premises shall be materially damaged or destroyed, destroyed in whole or in partpart by fire or other casualty, this Lease shall, except as hereinafter provided in this Section, remain in full force and effect and Landlord shall, upon notice of such damage from Tenant and proceeding with reasonable dispatch, repair or rebuild so much of the Premises as have been damaged by fire or the elements to substantially their condition at the time of the Term Commencement Date (subject, however, to zoning laws and building codes then in existence). Landlord shall in all events not be responsible for any delay which may result by reason of adjustment of insurance claims, collection of insurance proceeds, labor troubles, or from any other cause beyond Landlord’s reasonable control, with the understanding and agreement by Tenant that repair or restoration work will not occur prior to receipt of sufficient insurance proceeds, nor sums be expended in excess of net recovered insurance proceeds. Tenant shall concurrently repair or restore so much of the Premises as was constructed by Tenant and shall repair and restore its fixtures and personal property with the understanding and agreement by Landlord that repair or restoration work will not occur prior to receipt of sufficient insurance proceeds, nor sums be expended in excess of net recovered insurance proceeds. In the event that the provisions of this Section shall become applicable, the Base Rent and Additional Rent for real estate taxes and Operating Expenses shall be abated or reduced proportionately during any period in which, by reason of any such damage or destruction, there is substantial interference with the operation of the business of Tenant in the Premises, having regard to the extent to which Tenant may be required to discontinue its business in the Premises, and such abatement or reduction shall continue for the period commencing with such destruction or damage and ending with the substantial completion of such work, repair and/or reconstruction by Landlord. Notwithstanding the foregoing, either Landlord or Tenant may terminate this Lease following: (i) damage or destruction to the Premises to the extent of twenty-five percent (25%) or more of the replacement cost thereof; or (ii) the refusal of the applicable insurance carrier to pay funds sufficient for the cost to repair or replace or the refusal of any applicable mortgagee to release the insurance proceeds for such purposes or the imposition of unsatisfactory conditions by the insurance carrier or the applicable mortgagee. Landlord or Tenant may exercise the right to so terminate this Lease by written notice to the other given by the later of (a) ninety (90) days of the date of the damage, or (b) thirty (30) days after the date the insurer or mortgagee notifies Landlord of its refusal or failure to release sufficient proceeds or imposes unsatisfactory conditions but in no event later than one hundred and twenty (120) days after the date of such damage, whichever is later. Such notice of termination shall be effective on the date thereof. Notwithstanding the foregoing, if the Premises shall have been damaged or destroyed as aforesaid and if the Landlord exercises its right to terminate this Lease in accordance with the foregoing provisions of this Section 17A as a result of an insufficiency of insurance proceeds, then the Tenant shall have the right at its election to nullify the Landlord’s termination thereof by paying to the Landlord, within fifteen (15) days after the date of the Landlord’s termination notice, the amount of the insufficiency, as reasonably determined and estimated by the Landlord, of any net insurance proceeds available to the Landlord to cover the cost to restore and repair the Premises. If the Premises are damaged by fire or other casualty (an “Insured Casualty”), the applicable Issuer shall give prompt notice thereof and are not substantially repaired or restored to the Indenture Trustee and condition existing on the Property Manager. Following the occurrence date of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if within one hundred eighty (180) days following the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs date of such restoration, repair, replacement fire or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes casualty as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Tenant may thereafter terminate this Lease shall obligate the Tenant thereunder upon thirty (30) days prior written notice to repair, restore Landlord unless such repair or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make restoration is completed within such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) abovethirty day period.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 2 contracts
Samples: Lease Agreement (NxStage Medical, Inc.), Lease Agreement (NxStage Medical, Inc.)
Casualty. (a) If Sellers shall notify the Buyer as soon as reasonably practicable after obtaining Knowledge of the occurrence of any Force Majeure Event with respect to any Acquired Property and of any material damage or Improvements in connection with destruction (a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, “Casualty Event”) by fire or other casualty (an “Insured Casualty”)that is suffered by any Acquired Property on or before the Core Portfolio Closing Date or the HUD Portfolio Closing Date, as applicable, which notice shall include a reasonably detailed description of the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence extent of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destructiondestruction and of the relevant Casualty Event. If, all on or prior to be effected the relevant Closing Date, any Acquired Property or HUD Property shall have been damaged or destroyed by a Casualty Event or a Force Majeure Event, then the Buyer shall proceed to effect the relevant Closing in accordance with applicable law; provided which such Acquired Property or HUD Property is included, in which event the provisions of Sections 12.1(b) shall apply.
(b) With respect to any Acquired Company or HUD Company that if owns an Acquired Property or HUD Property that has been damaged by a Casualty Event or a Force Majeure Event (collectively, the Property Manager “Damaged Companies”):
(i) Sellers shall not direct (A) adjust and settle any insurance claims with respect to such damaged Acquired Property or HUD Property, or (B) enter into any construction or other contract for the Indenture Trustee repair or restoration of such damaged Acquired Property or HUD Property, in each case, without the Buyer’s prior written consent (except no such consent shall be necessary to make repair or restore any amounts received emergency or hazardous condition at such damaged Acquired Property or HUD Property), which consent shall not be unreasonably withheld, conditioned or delayed;
(ii) at the relevant Closing, Sellers shall (A) pay over to the Buyer the amount of any insurance or other proceeds, to the extent collected by Sellers or any Acquired Company or HUD Company, as applicable in connection with such Insured Casualty available Event or Force Majeure Event, less the amount of the actual and reasonable unreimbursed expenses incurred by Sellers or any Acquired Company or HUD Company, as applicable in connection with collecting such proceeds and making any repairs to reimburse the applicable Issuer for Acquired Property or HUD Property occasioned by such Casualty Event or Force Majeure Event pursuant to any contract (provided that such contract was reasonably approved by the costs Buyer as required by this Section 12.1) and (B) assign to the Buyer in form reasonably satisfactory to the Buyer all of Sellers’ right, title and interest in and to (or provide written confirmation from Sellers of an Acquired Company’s or HUD Company’s right to) any insurance proceeds that are uncollected at the time of the subject Closing and that may be paid in respect of such restorationCasualty Event or Force Majeure Event. Sellers shall cooperate with the Buyer in the collection of such proceeds, repairwhich obligation shall survive the subject Closing; and
(iii) The Final Purchase Price or the final HUD Portfolio Purchase Price, replacement as applicable, shall be reduced by the amount by which:
(1) the reasonably estimated post-closing cost of repair and restoration of all of the Damaged Companies,
(2) the remaining balance of the insurance proceeds assigned pursuant to (ii)(A) above plus the uncollected insurance proceeds or rebuildingtenant contributions to the cure reasonably expected to be collected after the relevant Closing by the Acquired Company or HUD Company and described in (ii)(B) above; provided, however, that (x) if such Issuer amount in the aggregate is less than One Million Dollars ($1,000,000), then (a) no reduction shall not be required made to perform the Final Purchase Price or the HUD Portfolio Final Purchase Price, as applicable, and (b) such restoration, repair, replacement or rebuilding, amount shall count against the Deductible for purposes of indemnification claims under Section 11.2 without regard to the limitations imposed by Section 11.2(c)(i); provided, further, that if the Deductible has otherwise been reached, then such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in reduction (or a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer reduction to the Property Manager pursuant to the terms extent of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of excess over the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property ManagerDeductible) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed made to the applicable Issuer to reimburse such Issuer Final Purchase Price or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loansfinal HUD Portfolio Purchase Price, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Capitalsource Inc), Securities Purchase Agreement (Omega Healthcare Investors Inc)
Casualty. (a) If any the Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyeddestroyed by a Casualty, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer Borrower shall give prompt notice thereof of such damage to Lender and shall promptly commence and diligently prosecute the completion of the Restoration of the Property as nearly as possible to the Indenture Trustee and condition the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as was in immediately prior to such damage or destructionCasualty, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps alterations as may be reasonably required to put approved by Lender and maintain otherwise in accordance with Section 6.4. Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance. Upon the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection occurrence of any amounts received in connection Casualty, Borrower shall (subject to the right hereinafter set forth of Lender to elect to do so), promptly file a proof of loss with an Insured Casualty the respective insurance company or companies insuring such Casualty. So long as no Event of Default shall be deemed a Property Protection Advance have occurred and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policiescontinuing, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer Borrower may settle and adjust any claim without on the consent amount of the Property Manager and agree Insurance Proceeds to be paid in respect of such Casualty with the insurance company or companies, with the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed; provided that such adjustment is carried out in a competent and timely manner. Lender may participate in any settlement and adjustment discussions with any insurance companies on the amount with respect to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured any Casualty in accordance with which the terms Net Proceeds or the costs of completing the Restoration are equal to or greater than Five Hundred Thousand Dollars ($500,000) and provisions of the related Lease.
(ii) Borrower shall deliver to Lender all instruments required by Lender to permit such participation. In the event an Insured that Borrower fails to promptly file a proof of loss with respect to any Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then fails to promptly and in that event, the applicable Issuer may diligently proceed to settle and adjust any claims with respect thereto, then Lender shall, at the sole cost and expense of Borrower, have the right to file such proof of loss, settle and adjust such claim and agree with such insurance company or companies without the consent of the Property Manager Borrower, and agree Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with the insurance company or companies on the amount an interest to be paid on the loss and shall immediately deposit such amounts received do so. Any Insurance Proceeds in connection with an Insured Casualty into therewith (whether or not Lender elects to settle and adjust the Casualty claim or Borrower settles such claim) shall be due and Condemnation Sub-Account, payable solely to Lender and held by Lender in accordance with the terms of the Indenture and this Agreement.
(iii) . In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 Borrower or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds party other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or Lender is a payee on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as any check representing Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any Casualty, Borrower shall immediately endorse, and cause all such Propertythird parties to endorse, such check payable to the related proceeds shall be applied in accordance order of Lender. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to endorse any such check payable to the related Loan Documentsorder of Lender.
Appears in 2 contracts
Samples: Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc)
Casualty. Borrower shall give Lender prompt notice of any loss or damage to the Premises the cost to repair which could reasonably be expected to be in excess of $250,000 in the aggregate and, subject to the rights of the Mortgage Lender under the Mortgage Loan Documents (which shall in all respects supercede the rights of Lender under this Section 2.31):
(a) If After the Mortgage Loan has been paid in full, (i) in the event of any Property loss or Improvements damage covered by any insurance, Lender shall apply any insurance proceeds in connection with a Hybrid Lease the same manner such proceeds would be required to be applied by Mortgage Lender under the Mortgage and other Mortgage Loan Documents and (ii) Borrower shall not adjust, compromise or settle any claim for such proceeds without the prior written consent of Lender, which shall not be materially damaged unreasonably withheld or destroyeddelayed and Lender shall have the right, at Borrower’s sole cost and expense, to participate in whole any settlement or in partadjustment of Insurance Proceeds; provided, by fire or other casualty (an “Insured Casualty”)however, that, except during the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence continuance of an Insured CasualtyEvent of Default, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer Lender’s consent shall not be required with respect to perform such restorationthe adjustment, repair, replacement compromising or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements settlement of any claim for proceeds in a safe and secure conditionan amount less than $1,000,000. The expenses incurred by the Property Manager Lender in the adjustment and collection of any amounts received in connection with an Insured Casualty such proceeds of insurance shall be deemed a Property Protection Advance and be secured hereby additional Debt of Borrower, and shall be reimbursed by to Lender upon demand or, at Lender’s option, in the applicable Issuer event and to the Property Manager pursuant extent sufficient proceeds are available, deducted by Lender from such proceeds of insurance prior to any other application thereof. If the terms Mortgage Loan has been paid in full, each insurance company which has issued insurance is hereby authorized and directed to make payment for all losses covered by such insurance to Lender alone, and not to Lender and Borrower or Owner jointly. Borrower agrees to execute and cause Owner to execute all documents and make all deliveries required in order to permit adjustment and payment of the Indentureinsurance proceeds as provided above.
(b) In case Subject to the prior rights of loss or damages Mortgage Lender, Borrower hereby assigns to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any Lender the proceeds of all insurance (other than worker’s compensation and liability insurance) obtained pursuant to this Agreement, all of which proceeds shall be payable to Lender as collateral and further security for the payment of the Property Insurance PoliciesDebt and the performance of Borrower’s obligations hereunder and under the other Loan Documents, and Borrower hereby authorizes and directs the following provisions shall apply:
issuer of any such insurance to, subject to the rights of Mortgage Lender, make payment of such proceeds directly to Lender. Lender may, in its sole discretion, apply the proceeds of insurance received upon any casualty to any one or more of the following: (i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) payment of the Fair Market Value of the applicable Property Debt, whether or Improvements not then due, in connection with a Hybrid Leaseany proportion or priority as Lender, the applicable Issuer in its discretion, may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such caseelect, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 repair or (b) five percent (5%) restoration of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid LeaseProperty, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event cure of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 any Default or (biv) five percent (5%) the reimbursement of the Fair Market Value costs and expenses of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses Lender incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject . Nothing herein contained shall be deemed to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds excuse Borrower from an Insured Casualty repairing or Condemnation maintaining or causing Owner to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer repair or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding maintain the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything this Agreement or restoring or causing Owner to restore all damage or destruction to the contrary contained hereinProperty, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction regardless of the Property Managersufficiency of the proceeds, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence application or release by Lender of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documentsnot cure or waive any Default or notice thereof.
Appears in 2 contracts
Samples: Loan and Security Agreement (Ashford Hospitality Trust Inc), Loan and Security Agreement (Ashford Hospitality Trust Inc)
Casualty. (a) If any the Property or Improvements in connection with shall sustain a Hybrid Lease shall be materially damaged or destroyedCasualty, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer Borrower shall give prompt notice thereof of such Casualty to Administrative Agent and shall promptly commence and diligently prosecute to completion the repair and restoration of the Property as nearly as possible to the Indenture Trustee and condition the Property Manager. Following was in immediately prior to such Casualty (a “Restoration”) and otherwise in accordance with Section 5.3, it being understood, however, that Borrower shall not be obligated to restore the occurrence Property to the precise condition of an Insured Casualtythe Property prior to such Casualty provided the Property is restored, to the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restoreextent practicable and permitted by Legal Requirements, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to the Casualty. Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance. Administrative Agent may, but shall not be obligated to, make proof of loss if not made promptly by Borrower; provided, however, that any insurance proceeds received by Administrative Agent in respect of such damage or destruction, all to destruction shall be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty made available to reimburse the applicable Issuer for pay the costs of such restorationRestoration at the time or times, repairand subject to the conditions precedent, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, specified in Section 5.3 below; provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager however, in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer event such insurance proceeds are not made available to the Property Manager Borrower pursuant to the terms of Section 5.3 below, nothing herein shall in any way limit Borrower’s obligation to repair the Indenture.
Property to the extent necessary (bi) In case of loss or damages to protect life and safety at the Property and (ii) to return the Property to a condition where the Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by is deemed an architectural whole whereby access to any portion of the Property Insurance Policies, is not materially impaired and the following provisions shall apply:
(i) shell of the applicable Improvements are fully complete and closed. In the event of an Insured a Casualty that where the loss does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid LeaseRestoration Threshold, the applicable Issuer Borrower may settle and adjust any such claim without the consent Administrative Agent’s prior consent; provided that (a) no Event of the Property Manager Default has occurred and agree with the insurance company or companies on the amount to be paid upon the lossis continuing and (b) such adjustment is carried out in a commercially reasonable and timely manner. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured of a Casualty shall where the loss does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid LeaseRestoration Threshold, then and in that event, the applicable Issuer Borrower may settle and adjust any such claim without the consent Administrative Agent’s prior consent; provided that (a) no Event of the Property Manager Default has occurred and agree with the insurance company or companies on the amount to be paid on the loss is continuing and shall immediately deposit (b) such amounts received adjustment is carried out in connection with an Insured Casualty into the Casualty a commercially reasonable and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) timely manner. In the event of an Insured a Casualty where the loss is in exceeds the Restoration Threshold, or if an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under then exists, Borrower may settle and adjust such claim only with the Indenture consent of Administrative Agent (which consent shall not be unreasonably withheld, conditioned or delayed) and Administrative Agent shall have occurred and be then continuingthe opportunity to participate, the amounts received at Borrower’s cost, in connection with any such an Insured Casualty (after reimbursement of adjustments. Notwithstanding any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, Borrower shall continue to pay the Debt at the time and in the manner set forth below, provided, provided for its payment in the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants Note and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicableAgreement.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 2 contracts
Samples: Senior Loan Agreement (Pacific Oak Strategic Opportunity REIT, Inc.), Senior Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Casualty. (a) If any Property or the Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, totally destroyed by fire or other casualty (an “Insured Casualty”)by extended coverage perils, the applicable Issuer they shall give prompt notice thereof be repaired or restored according to the Indenture Trustee provisions contained in this Section, at the cost and the Property Managerexpense of Lessee. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer Lessor shall not be required to perform contribute in any way toward such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty involved shall be deemed repaired to a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer condition which is comparable as nearly as possible to their condition just prior to the Property Manager pursuant damage, subject to applicable law at the terms of the Indenturetime.
(b) In case the event of loss a partial or damages total destruction of the Improvements on the Leased Premises, Lessee shall repair, restore or reconstruct the affected Improvements within one hundred eighty (180) days after the receipt by Lessee of fire insurance proceeds, subject to force majeure, or within a reasonable additional extension period which may be required, to a Property not securing a Mortgage Loan or Improvements condition comparable to their condition just prior to such destruction, subject to applicable law at the time. Lessor shall promptly endorse any checks payable to Lessor in connection with a Hybrid Lease covered by such proceeds and shall deliver the same to Lessee or the Insurance Trustee, as the case may be. The proceeds of any of the Property Insurance Policies, the following provisions such insurance shall applybe payable as follows:
(i) In to Lessee to the event extent of an Insured Casualty that does proceeds not exceed exceeding $_____________, which proceeds Xxxxxx agrees shall be received in trust to pay the greater costs of (a) $100,000.00 restoration or (b) five percent (5%) shall be payable by Lessee, if it so elects, to its sublessee in trust to pay the cost of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Leaserestoration.
(ii) In the entire proceeds, in the event an Insured Casualty shall the proceeds exceed $____________, to the Insurance Trustee.
(c) Upon receipt by the Insurance Trustee of:
(i) A certificate of Lessee (a "Repair Certificate'") dated not more than twenty (20) days prior to the date of such receipt (A) requesting the payment of a specified amount of such insurance monies; (B) describing in reasonable detail the work and materials applied to the restoration or replacement of the damaged or destroyed Improvements since the date of the last Repair Certificate of Lessee; (C) stating that such specified amount does not exceed the greater cost of such work and materials; and (aD) $100,000.00 stating that such work and materials have not previously been made the basis of any request for or any withdrawal of money;
(bii) five percent A certificate of an independent engineer or an independent architect designated by Xxxxxx, who in either case shall be duly licensed and shall be approved by Lessor (5%which approval shall not be unreasonably withheld, conditioned or delayed) stating (A) that the work and materials described in the accompanying certificate of Lessee were satisfactorily performed and furnished and were necessary, appropriate or desirable to the restoration or replacement of the Fair Market Value of the applicable Properties damaged or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Accountdestroyed Improvements, in accordance with the terms plans and specifications therefor; (B) that the amount specified in such Lessee's Repair Certificate is not in excess of the Indenture cost of such work and this Agreement.materials; and (C) the estimated additional amount, if any, required to complete the restoration or replacement of the damaged or destroyed Improvements;
(iii) In A written opinion of counsel, who may be counsel for Lessee, reasonably satisfactory to Lessor, dated not earlier than Lessee's Repair Certificate, or, at the event option of Lessee, an Insured Casualty where endorsement of Lessor's title insurance policy or an updated title insurance policy from a title insurance Lessee acceptable to Lessor, to the loss effect that, as of the date thereof the Leased Premises is in an aggregate amount more not subject to any mechanics' lien or other lien or encumbrance (other than the greater Leasehold Mortgage) caused by Lessee, its subcontractors, or their respective employees, contractors or agents; the Insurance Trustee shall pay to Lessee the amount requested; provided, however, that the balance of (a) $100,000.00 or (b) five percent (5%) insurance monies deposited with the Insurance Trustee shall not be reduced below the amount specified in such certificate of the Fair Market Value independent engineer or the independent architect as the amount required to complete the restoration or replacement of the applicable Properties damaged or Improvements destroyed Improvements. Each such payment shall be held by Lessee in connection with a Hybrid Lease, trust and if, in shall be used solely for the reasonable judgment payment of the Property Manager costs described in Xxxxxx's Repair Certificate (or to reimburse Lessee for any portion of such costs which Xxxxxx has advanced from its own funds). If there shall remain on deposit with the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment Insurance Trustee any balance of insurance monies after any damaged or destroyed portions of the impact Improvements shall have been completely restored or replaced, as evidenced by a certificate of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior independent engineer or independent architect delivered to the Insured CasualtyInsurance Trustee, thensuch balance of insurance monies shall be paid to Lessee, if provided no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection exist hereunder. Concurrently with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed Xxxxxx's delivery to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost Insurance Trustee of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess each of the net proceeds made available pursuant foregoing certificates and/or legal opinions, Lessee shall deliver duplicate copies thereof to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approveLessor. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary set forth in this subsection, the Insurance Trustee shall make no further payment of insurance proceeds to Lessee following receipt of a notice from Lessor that an Event of Default exists under this Agreement until and unless instructed by Lessor that such Event of Default has been cured. Lessor shall promptly endorse any checks payable to the order of Lessor in connection with such insurance proceeds and shall deliver the same to Lessee or to the Insurance Trustee, as the case may be.
(d) Anything contained hereinin this Section to the contrary notwithstanding, if in the event that either (i) a total or substantial destruction of the Project shall occur at any Permitted Lease time during the last two (2) years of the Term of this Agreement, or (ii) at any time during the Term a total or substantial destruction occurs but, by reason of a change in law, the Lessee is unable to build the Project as large as existed formerly and Lessee shall obligate notify Lessor that Lessee's Board of Directors has determined in good faith that the Tenant thereunder leasable area after reconstruction will not be sufficient to make the operation of the Project economically viable, Lessee may elect not to repair, restore or rebuild reconstruct the affected Property Improvements by sending written notice of such election to Lessor within ninety (90) days after the occurrence of an Insured Casualtydestruction shall have occurred. In the event that Lessee shall so elect not to repair, restore or reconstruct, the applicable Issuer, at the direction lease hereby created shall cease as of the Property Managerdate of said destruction, Lessee shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any pay all Rent due as of the Property Insurance Policies with respect to a Property securing a Mortgage Loan date of said destruction, and there shall be no further liability of either Party except for those obligations which expressly survive the expiration or any Condemnation with respect to any termination of this Agreement. In such Propertyevent, the related insurance proceeds shall be applied in accordance with the related Loan Documentsfollowing order of priority: To payment of the Leasehold Mortgage; Remainder to Lessor. In the event any restoration contemplated in this Section is required during the term of any sublease and the subcontractors thereunder is obligated therefor, provided such subcontractors does not exercise any right to terminate its sublease on account of the casualty necessitating such restoration, the provisions governing such casualty under the applicable sublease shall control provided that such sublease provisions provide for the restoration of the subleased Premises to a condition comparable to their condition immediately preceding such casualty, subject to applicable law at the time of such restoration.
Appears in 2 contracts
Samples: Lease Agreement, Lease Agreement
Casualty. (ai) If all or any part of the Company Real Property or Improvements in connection with a Hybrid Lease shall be materially the Company Leaseholds (excluding Inventory) is damaged or destroyed, in whole or in part, destroyed by fire or other casualty (an “Insured Casualty”), occurring following the applicable Issuer shall give prompt notice thereof date hereof and prior to the Indenture Trustee Closing Date and such fire or other casualty is fully insured by the Company’s casualty insurance policies, neither party shall have the right to terminate this Agreement and the Property Manager. Following parties shall nonetheless consummate the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty Transactions in accordance with the terms and provisions Sale Documents, without any abatement of the related LeasePurchase Price or any liability or obligation on the part of the Company by reason of said destruction or damage other than an assignment to Purchaser of all the Company’s rights to make a claim for and to retain any casualty insurance proceeds received under such casualty insurance policies in effect with respect to such damaged Company Real Property or Company Leasehold (excluding Inventory) and Purchaser shall receive a credit from the Cash Purchase Price due at Closing for the amount of the deductible on such casualty insurance policy.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 If all or (b) five percent (5%) any part of the Fair Market Value of Company Real Property or the applicable Properties Company Leaseholds (excluding Inventory) is damaged or Improvements in connection with a Hybrid Leasedestroyed by fire or other casualty occurring following the date hereof and prior to the Closing Date and such fire or other casualty is not fully insured by the Company’s casualty insurance policies, then neither party shall have the right to terminate this Agreement and in that event, the applicable Issuer may settle and adjust any claim without parties shall nonetheless consummate the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, Transactions in accordance with the terms Sale Documents, without any abatement of the Indenture and this Agreement.
(iii) In Purchase Price or any liability or obligation on the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) part of the Fair Market Value Company by reason of the applicable Properties said destruction or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four damage other than either (24i) months restoring and/or rebuilding or replacing such damaged property to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than substantially the same was condition as it existed prior to the Insured Casualty, then, if no Event occurrence of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty fire or other casualty or (after reimbursement of any reasonable expenses incurred by the Property Managerii) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection providing Purchaser with a Hybrid Lease or part thereof subject to credit from the Insured Casualty, Cash Purchase Price due at Closing in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or amount equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the such repair or restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 2 contracts
Samples: Asset Purchase and Sale Agreement (Avaya Inc), Asset Purchase and Sale Agreement (Northwestern Corp)
Casualty. (a) If any Property of the Leased Space or Improvements in connection with a Hybrid Lease shall be materially the building is damaged or destroyed, in whole or in part, destroyed by fire or other casualty insured under the standard fire insurance policy with approved standard extended coverage endorsement applicable to the Leased Space and Building, the Landlord shall except as otherwise provided herein (an “Insured Casualty”but only to the extent the holder of the mortgage lien on the building permits release of insurance proceeds), repair and rebuild such damage which requires the applicable Issuer Tenant temporarily to close his/her/their/its office therein, the rental fee shall give prompt notice thereof be abated for so long as the Tenant's office is reasonably closed. If such repairs interfere with the use of the Lease Space, but do not necessitate the actual closing thereof, the rental fee shall equitably apportioned, for so long as such repairs so interfere, in proportion to the Indenture Trustee extent to which there is an actual interference with the Tenant's use of the Leased Space. Notwithstanding the foregoing provisions, in the event the premises shall be damaged by fire or other insured casualty due to the fault or neglect of the Tenant, or the Tenant's servants, employees, contractors, agents, visitors or licensees, then without prejudice to any other rights and remedies of the Property ManagerLandlord, and provided the damage is repaired by the Landlord, there shall be no apportionment or abatement of any rent. Following If the occurrence of Building is damaged or destroyed due to an Insured Casualtyevent which is not covered by insurance and Landlord determines not to repair or rebuild, or if so covered, the applicable Issuer shall promptly (Landlord determines not to repair or shall promptly cause the Tenant or Borrower to) proceed to restorerebuild, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destructiondestruction renders the Leased Space unfit for use as office space, all this Lease will terminate and neither Landlord nor Tenant will have any further obligations hereunder. Except to be effected the extent provided for in accordance with applicable law; provided that if this paragraph, neither the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred rent payable by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by Tenant nor any of the Property Insurance Policies, the following provisions Tenant's other obligations under any provision of this Lease shall apply:
(i) In the event be affected by any damage to or destruction of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) any part of the Fair Market Value Premises by any cause whatsoever, and the Tenant hereby expressly waives any and all additional rights he/she/they/it might otherwise have under any law or statute. Tenant acknowledges that if, as a result of any casualty, whether insured against or not, whether Landlord rebuilds or not, Tenant is forced to rent temporary and/or permanent office space in another location, all expenses of the applicable Property or Improvements in connection with a Hybrid Leaserelocation including but not limited to moving expenses, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Leaserental fees, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) security deposits shall be collected by solely the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereofTenant's responsibility.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Casualty. (a) If any Property If, at or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage Closing, any damage, destruction or destruction, all casualty shall have occurred as to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in which a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
tenant (i) In has the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle responsibility to repair and adjust any claim without the consent of restore the Property Manager under its respective Lease and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater has no right of (a) $100,000.00 rent abatement or (b) five percent (5%) offset, in full or in part as a result of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that eventsuch casualty, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount parties shall proceed to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, Closing in accordance with the terms of this Agreement without any reduction in the Indenture Contribution Value.
(i) If, at or prior to Closing, any other damage, destruction or casualty, of any Property, occurs, which damage, destruction or casualty creates loss valued at ten (10%) percent or less of the Contribution Value, then this Agreement shall continue in full force and effect and Columbia shall give written notice of such event to Inland (which notice will include a description of the nature, extent and estimated amount of damage or loss suffered by the Property in connection with such casualty), in which event the parties shall proceed to Closing in accordance with the terms of this Agreement without any reduction in the Contribution Value, and Columbia shall (A) assign to Inland at Closing all of its rights to and interest in all proceeds of casualty insurance and business interruption and rent loss insurance relating to the period from and after the date of Closing payable on account of such casualty, (B) pay to Inland at Closing an amount equal to the full amount of the deductible applicable under such insurance policies, by way of a credit against the Contribution Value equal to the deductible unless tenants are responsible for the deductible in CAM. Columbia shall cooperate reasonably with Inland before and after Closing to file and process an insurance claim for all insured loss arising out of such casualty. Columbia shall not settle or adjust any such insurance claim without Inland’s prior written consent. Columbia shall have no obligation to repair or restore any Property other than necessary measures as may be necessary to secure any such Property from natural elements, vandalism or further deterioration.
(ii) If, at or prior to Closing, any other damage, destruction or casualty, of the Property, occurs which damage, destruction or casualty creates a loss valued in excess of ten (10%) percent of the Contribution Value allocated to such Property, then Columbia shall notify Inland in writing (hereinafter referred to as a “Columbia Casualty Notice”), which Columbia Casualty Notice will include a description of the nature, extent and estimated amount of damage or loss suffered by the affected Property in connection with such casualty. Within ten (10) days after receipt of the Columbia Casualty Notice, Inland shall notify Columbia, in writing, as to whether (A) Inland will elect to proceed to Closing or (B) Inland will elect to terminate this Agreement. If Inland does not make such written election within the time period specified above, Inland will be deemed to have made the election set forth in clause (A).
(iii) In If Inland makes (or is deemed to have made) the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner election set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be clause (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(ASection 7.1(b)(ii) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease then this Agreement shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty continue in the Casualty full force and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease effect and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein parties shall proceed to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied Closing in accordance with the related Loan Documentsterms of this Agreement without any reduction in the Contribution Value, and the Columbia shall (A) assign to Inland at Closing all of its rights to and interest in all proceeds of casualty insurance and business interruption and rent loss insurance relating to the period from and after the date of Closing payable on account of such casualty and (B) pay to Inland at Closing an amount equal to the full amount of the deductible applicable under such insurance policies, by way of a credit against the Contribution Value equal to the deductible, Columbia shall cooperate reasonably with Inland before and after Closing to file and process an insurance claim for all insured loss arising out of such casualty. Columbia shall not settle or adjust any such insurance claim without Inland’s prior written consent. The Columbia shall have no obligation to repair or restore any Property other than necessary measures as may be necessary to secure any such Property from natural elements, vandalism or further deterioration.
Appears in 1 contract
Samples: Agreement of Contribution (Inland American Real Estate Trust, Inc.)
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially the Premises is damaged or destroyed, in whole or in part, destroyed by fire or other casualty and Landlord does not elect to terminate this Lease as hereinafter provided, Landlord shall proceed with reasonable diligence and at its sole cost and expense to rebuild and repair the Premises. If (an “Insured Casualty”)i) more than fifty percent (50%) of the square footage of the Premises shall be damaged by any fire or other casualty during the last year of the Initial Term or during the last year of any Option Period, or (ii) Landlord is unable to rebuild any material portion of the applicable Issuer Office Building due to any inability to obtain any required governmental approval in connection therewith after exhausting diligent and best efforts to obtain such approvals, or (iii) more than fifty percent (50%) of the floor area of the Office Building shall give prompt notice thereof to be damaged or destroyed by fire or other casualty and such damage or destruction materially and adversely impacts Tenant’s use of the Indenture Trustee and Premises for the Property Manager. Following Permitted Use, or (iv) if all or any material part of the Office Building or the Premises shall be damaged or destroyed at any time by the occurrence of an Insured Casualtyany risk not insured under the insurance required to be carried under Article IX above and such damage or destruction materially and adversely impacts Tenant’s use of the Premises for the Permitted Use, or (v) for any reason whatsoever sufficient insurance (through no fault of Landlord) proceeds are not available to pay for the applicable Issuer rebuilding and/or repair of the Office Building and/or the Premises (including, without limitation, by the exercise of the right of any mortgagee of the Office Building to apply insurance proceeds to any obligations of Landlord to such mortgagee) after exhausting diligent and best efforts to obtain such funds, then Landlord shall promptly have the option to terminate this Lease by giving written notice to Tenant. Landlord shall give written notice to Tenant of such election within thirty (or 30) days after the occurrence of such casualty and if it elects to rebuild and repair shall promptly cause the Tenant or Borrower to) proceed to restoredo so with reasonable diligence and at its sole cost and expense. If Landlord elects not to rebuild in accordance with this subsection, repair, replace then this Lease shall terminate as of the earlier of (1) the date designated by Tenant in writing to Landlord or rebuild (2) 120 days after delivery of Landlord’s notice to Tenant of its election not to rebuild. Tenant may elect to terminate this Lease by notice to Landlord if substantial completion of restoration of the same to be Premises or of at least equal value and the access thereto does not occur within ninety (90) days after the date of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided or if Landlord gives Tenant notice that if Landlord has determined that substantial completion of restoration of the Property Manager Premises or of the access thereto shall not direct take longer than ninety (90) days after the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs date of such restoration, repair, replacement damage or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenturedestruction.
(b) In case of loss or damages Landlord’s obligation to a Property not securing a Mortgage Loan or Improvements rebuild and repair under this Article X shall in connection with a Hybrid Lease covered by any of event be limited to restoring the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount Premises to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than substantially the same was condition in which the same existed prior to the Insured Casualtycasualty. In no event shall Landlord be required to repair or replace Tenant’s merchandise, thentrade fixtures, if no Event furnishings or equipment. Tenant agrees that promptly after completion of Default under such work by Landlord Tenant shall proceed with reasonable diligence and at Tenant’s sole cost and expense to repair or replace Tenant’s merchandise, trade fixtures, furnishings or equipment so that Tenant can resume use of the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant Premises for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) aboveUse.
(c) Notwithstanding anything contained herein Tenant agrees that during any period of reconstruction or repair of the Premises it shall continue the operation of its business within the Premises to the contrary (including in Section 3.20 below)extent practicable. During the period from the occurrence of the casualty until Landlord’s repairs are completed, the Rent shall be reduced to such extent as may be fair and reasonable under the circumstances; however, there shall be no abatement of Rent in the case of loss event the underlying damage was caused by Tenant, or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan its contractors, subcontractors, employees, agents or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documentsinvitees.
Appears in 1 contract
Casualty. (a) If any Individual Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an a “Insured Casualty”), the applicable Issuer Borrower or Leasehold Pledgor shall give prompt notice thereof to the Indenture Trustee and the Property ManagerLender. Following the occurrence of an Insured a Casualty, the applicable Issuer subject to Borrower’s rights under Section 2.4.4(c) and Section 2.5.3 hereof, Borrower or Leasehold Pledgor, regardless of whether insurance proceeds are available, shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same such Individual Property (or cause Owner to restore, repair, replace or rebuild such Individual Property) in accordance with Legal Requirements to be of at least equal value and of substantially the same character as prior to such damage or destructiondestruction as soon as reasonably practicable (but in no event later than one hundred twenty (120) days after such Casualty. Lender may, all to be effected in accordance with applicable law; provided that if the Property Manager but shall not direct the Indenture Trustee be obligated to make proof of loss if not made promptly by Borrower or Owner. In addition, Lender may, subject to the rights of Mortgage Lender, participate in any amounts received settlement discussions with any insurance companies (and shall approve any final settlement) (i) if an Event of Default is continuing or (ii) with respect to any Casualty in connection with such Insured Casualty available to reimburse which the applicable Issuer for Net Proceeds or the costs of such restoration, repair, replacement completing the Restoration are equal to or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain greater than the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection Alteration Threshold with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer respect to the Property Manager pursuant affected Individual Property, and Borrower shall deliver (or cause Owner to deliver) to Lender all instruments required by Lender to permit such participation. Provided no Event of Default is continuing, and subject to the terms rights of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements Lender, in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured a Casualty that does not exceed where Net Proceeds or the greater costs of (a) $100,000.00 or (b) five completing the Restoration are two percent (52%) of the Fair Market Value Allocated Loan Amount of the applicable any Individual Property or Improvements in connection with a Hybrid Leaseless, Borrower, notwithstanding Section 5.4, may directly obtain and apply the applicable Issuer may settle and adjust any claim without Net Proceeds; provided that such Net Proceeds must be used towards the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty Restoration in accordance with the terms and provisions of hereof. Except as set forth in the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements foregoing sentence, any Insurance Proceeds in connection with a Hybrid Lease, then and in that event, the applicable Issuer may any Casualty (whether or not Lender elects to settle and adjust any the claim without the consent of the Property Manager or Borrower or Leasehold Pledgor causes Owner or Operating Lessee to settle such claim) shall be due and agree with the insurance company or companies on the amount payable solely to be paid on the loss Mortgage Lender and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, held by Mortgage Lender in accordance with the terms of the Indenture and this Mortgage Loan Agreement.
(iii) . In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 Borrower, Leasehold Pledgor, Owner, Operating Lessee or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds party other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or Lender is a payee on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as any check representing Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any Casualty, Borrower or Leasehold Pledgor shall immediately endorse (or cause Owner or Operating Lessee, as applicable, to immediately endorse), and cause all such Propertythird parties to endorse, such check payable to the related proceeds shall be applied in accordance with order of Lender, subject to the related rights of Mortgage Lender under the Mortgage Loan Documents. Borrower and Leasehold Pledgor each hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to endorse any such check payable to the order of Lender, subject to the rights of Mortgage Lender. Borrower and Leasehold Pledgor each hereby release Lender from any and all liability with respect to the settlement and adjustment by Lender of any claims in respect of any Casualty.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Hospitality Investors Trust, Inc.)
Casualty. Borrower shall promptly notify Lender of any loss in excess of ONE HUNDRED THOUSAND DOLLARS (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”$100,000.00), the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Managerwhether covered by insurance or not. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan damage by fire or Improvements in connection with a Hybrid Lease covered by any other casualty, Lender, or after foreclosure, the holder of the Property Insurance Policiescertificate or certificates of purchase, the following provisions shall apply:
is authorized (i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may to settle and adjust any claim without under insurance policies which insure against such risks (with the consent duty of the Property Manager Lender to meet and confer with Borrower), or (ii) to allow Borrower to agree with the insurance company or companies on the amount to be paid upon in regard to such loss; provided, however, so long as no Event of Default then exists, Borrower shall have the lossright to settle all insurance claims involving amounts up to ONE HUNDRED THOUSAND DOLLARS ($100,000.00) without Lender's involvement or consent and to receive the proceeds directly for application to the costs of restoration. In such either case, such Issuer Lender is hereby authorized to collect and receipt for insurance proceeds in excess of ONE HUNDRED THOUSAND DOLLARS ($100,000.00). Subject to distribute such amounts distributed the preceding Section 1.6(a), provided no Event of Default then exists and Borrower certifies as to same, the net insurance proceeds (after deduction of Lender's out of pocket costs and expenses, if any, in connection with an Insured Casualty in accordance with collecting the terms and provisions same) shall be made available for the restoration or repair of the related Lease.
Property if, in Lender's sole and absolute discretion: (i) restoration or repair and the continued operation of the Property is economically feasible; (ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) no lease has terminated as a result of the Fair Market Value of the applicable Properties loss or Improvements in connection with a Hybrid Leasedamage and all leases remain enforceable under their terms, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
modification; (iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, does not occur in the reasonable judgment six (6) month period preceding the stated Maturity Date and Lender's independent consultant certifies that the restoration of the Property Manager the Property can be restored within twenty-four completed at least ninety (2490) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was days prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred Maturity Date; and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject the insurance proceeds are sufficient to clauses (i)-(iii) in this Section 3.19(b), complete the restoration or repair or Borrower has deposited with Lender an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualtyamount, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Propertycash, deposited into the Release Account to be used to acquire Qualified Substitute Propertieswhich Lender, Qualified Substitute Hybrid Leases or Qualified Substitute Loansin its sole discretion, as applicable.
(v) In the event the applicable Issuer determines is entitled to reimbursement out of the amounts held by the Indenture Trusteenecessary, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds net insurance proceeds, to complete pay in full the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion cost of the restoration, repair, replacement and rebuilding shall exceed ninety percent restoration or repair (90%) of the value of the work performed from time to time; funds other than proceeds Borrower's deposit shall be disbursed prior to any disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of insurance proceeds held by the Indenture Trustee Lender). Any excess proceeds remaining after payment completion of such costs of restoration, repair, replacement or rebuilding repair shall be transferred distributed first to Borrower to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.extent Borrower has
Appears in 1 contract
Casualty. (a) If any time prior to the Closing any portion of the improvements included in the Real Property is destroyed or Improvements in connection with damaged as a Hybrid Lease result of fire or any casualty, Seller shall promptly notify Purchaser of the same. The rights and obligations of the parties by reason of such destruction or damage shall be as follows:
11.2.1 If the Cost of Repair and Restoration (as hereinafter defined) of such destruction or damage shall be One Million and No/100 Dollars $1,000,000.00 (the “Repair Threshold”) or less and the destruction or damage does not materially damaged or destroyed, in whole or in part, by fire or other casualty impair the use and operation of the public space (an “Insured Casualty”)including restaurants) within the Real Property, the applicable Issuer shall give prompt notice thereof to obligations of the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer parties under this Agreement shall not be required affected by such destruction or damage, and Purchaser shall accept title to perform such restoration, repair, replacement the Property in its destroyed or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure damaged condition. The Purchaser shall pay the Purchase Price without reduction, and Seller shall pay over or assign to Purchaser without recourse all rights to any proceeds of insurance payable with respect to such destruction or damage (less any collection costs incurred by Seller in connection therewith and any costs and expenses incurred by Seller to restore the Property Manager Property, provided that Purchaser has approved of any such settlement of the casualty claim and/or restoration, such approval not to be unreasonably withheld, conditioned or delayed) including the proceeds of any rent loss insurance applicable to the period after Closing, and Purchaser shall receive a credit against the Purchase Price in the adjustment and collection amount of any amounts received in connection with an Insured Casualty deductible.
11.2.2 If the Cost of Repair and Restoration of such destruction or damage shall be deemed a Property Protection Advance exceed the Repair Threshold or the destruction or damage materially impairs the use and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms operation of the Indenture.
public space (bincluding restaurants) In case of loss within the Real Property, then Purchaser shall have the right to terminate this Agreement by notice to Seller given on or damages before the date that is the earlier to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater occur of (a) $100,000.00 ten (10) days after the date of the Cost Notice (as hereinafter defined) or (b) five percent (5%) of the Fair Market Value of Closing. In the applicable Property or Improvements in connection with a Hybrid Leaseevent that Purchaser does not elect to terminate this Agreement as permitted by this Section 11.2.2, the applicable Issuer may settle and adjust any claim without the consent of Purchaser shall accept title to the Property Manager and agree with the insurance company in its destroyed or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty damaged condition in accordance with and subject to the terms and provisions of Section 11.2.1. In the related Lease.
event that the Agreement is terminated pursuant to this Section 11.2.2, (i) the Deposit shall be returned to Purchaser, and (ii) In except as expressly provided for in this Agreement, neither Seller nor Purchaser shall have any further liability or obligation to the event an Insured Casualty other under this Agreement. 36
11.2.3 The term “Cost of Repair and Restoration” shall exceed mean the greater amount of (a) $100,000.00 or (b) five percent (5%) Seller’s good faith estimate of the Fair Market Value actual cost of repair and restoration. Seller shall send Purchaser notice of the applicable Properties or Improvements in connection with a Hybrid Lease, then Cost of Repair and in that event, Restoration (the applicable Issuer may settle and adjust any claim without “Cost Notice”) promptly after making the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreementaforesaid estimate. 12.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Casualty. (a) 14.1 If any Property the Leased Premises, the Common Areas or Improvements in connection with a Hybrid Lease shall be materially the Building are totally or partially damaged or destroyeddestroyed thereby rendering the Leased Premises totally or partially inaccessible or unusable, in whole or in part, by fire or other casualty (an “Insured Casualty”)then the Commission shall diligently repair and restore the Leased Premises, the applicable Issuer shall give prompt notice thereof Common Areas or the Building to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as condition they were in prior to such damage or destruction. If, all within 60 days after the casualty, the Commission determines that the repair and restoration cannot be completed within 12 months of the casualty (“Repair Period”), then the Commission must notify the County and the County may terminate this Lease by exercising its right to termination as set forth in Section 15.4 below. If the Leased Premises are rendered untenantable, the Rent shall be effected in accordance with applicable lawwholly abated; otherwise, the Rent shall be partially abated to the extent that the Building, the Common Areas and the Leased Premises are incapable of being used by the County as provided under this Lease.
14.2 If this Lease is terminated pursuant to Section 14.1, then the Rent (including the Additional Rent) shall be apportioned (based on the portion of the Leased Premises which is usable after such damage or destruction) and paid to the date of termination. If this Lease is not terminated as a result of such damage or destruction, then until such repair and restoration of the Leased Premises are substantially complete, the County shall be required to pay a pro- rata portion of the Rent only for the portion of the Leased Premises and/or the Common Areas that are usable while such repair and restoration are being made; provided, however, that if such damage or destruction was caused by the Property Manager act or omission of the County, then the County shall not direct be entitled to any Rent reduction. After receipt of all insurance proceeds, the Indenture Trustee to make any amounts received in connection Commission shall proceed with such Insured Casualty available to reimburse and bear the applicable Issuer for the costs expenses of such restorationrepair and restoration of the Leased Premises, repairthe Common Areas and the Building; provided, replacement however, that (a) if such damage or rebuildingdestruction was caused by the act or omission of the County , then the County shall pay the Commission’s deductible, if any, and the amount by which such Issuer expenses exceed the insurance proceeds, if any, actually received by the Commission on account of such damage or destruction, (b) the County shall pay the amount by which the cost of restoring any item which Commission is required to restore and the County is required to insure exceeds the insurance proceeds received with respect thereto, and (c) the Commission shall not be required to perform such restorationrepair or restore any Alterations or any other contents of the Leased Premises (including, repairwithout limitation, replacement the County’s fixtures, decorations, furnishings, equipment or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure conditionpersonal property). The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer Notwithstanding anything herein to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policiescontrary, the following provisions shall apply:Commission may terminate this Lease if
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 insurance proceeds are insufficient to pay the full cost of such repair and restoration, or (b) five percent (5%) of the Fair Market Value of the applicable Property Building is damaged by fire or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due casualty to such Insured Casualty) and an extent that the Commission decides not materially less useful than to rebuild or reconstruct the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereofBuilding.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Samples: Lease Agreement
Casualty. (a) If any Property the Premises or Improvements in connection with a Hybrid Lease shall be materially the Building or the Parking Deck, as applicable, as the case may be, is damaged or destroyed, in whole or in part, destroyed by fire or other casualty to the extent of twenty percent (an 20%) or more of the value thereof in the reasonable opinion of Landlord, then Landlord shall notify Tenant of such opinion (“Insured CasualtyMajor Casualty Notice”), and thereafter either Landlord or Landlord’s lender may by written notice to Tenant, or, if not resulting from the applicable Issuer shall give prompt fault, negligence, act, omission or other misconduct of Tenant or its agents, employees, guests, customers, contractors or invitees then Tenant may by written notice thereof to Landlord, in each case given not later than sixty (60) days after the date of the Major Casualty Notice, terminate this Lease effective to the Indenture Trustee date of such fire or other casualty. If Landlord’s lender will not agree that insurance proceeds can be applied to restoration and repair of the Property Manager. Following Building or the occurrence Parking Deck, as applicable, following a Major Casualty Notice, or if Landlord determines that available insurance proceeds will be insufficient to repair and restore the Building or the Parking Deck, as applicable, substantially to the condition thereof existing immediately prior to such damage or destruction and Landlord is unwilling to fund such difference and complete repair and restoration of an Insured Casualtythe Building or the Parking Deck, as applicable, substantially to the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as condition thereof existing immediately prior to such damage or destruction, all then Landlord shall notify Tenant of in any such instance, and Tenant or Landlord may, within thirty (30) days of such a notice, terminate this Lease by notice to the other. If this Lease is not so terminated as provided in this Section 15.01, then (a) Landlord shall proceed with diligence to rebuild and restore that portion of the Building or the Parking Deck, as applicable (exclusive of Tenant’s property and improvements or alterations that are the property of Tenant) that was so damaged or destroyed substantially to the condition thereof existing immediately prior to such damage or destruction, to the extent of available insurance, within two hundred seventy (270) days after the date of such fire or other casualty (exclusive of Tenant Delay (as hereinafter defined) and Force Majeure Delay), and (b) the Term shall not terminate, but any Rent shall xxxxx on a per diem basis while the Premises remain untenantable. Landlord shall not be effected obligated to rebuild or restore any of (i) Tenant’s personal property, equipment, furniture or trade fixtures, or (ii) any alterations or improvements made in accordance with applicable law; provided Article 14 or other alterations or improvements that if the Property Manager shall were not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms part of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies Premises on the amount to be paid upon the lossCommencement Date. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty If Landlord shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds fail to complete the proposed restorationrebuilding and restoration of the Parking Deck, repairthe Building and/or the Premises such that a certificate of occupancy (temporary or final) shall not have been issued within the aforesaid 270-day period, replacement exclusive of Force Majeure Delay and rebuildingTenant Delay, then either Landlord or Tenant, by written notice to the other given within fifteen (15) days next following the last day of the aforesaid 270-day period, may terminate this Lease retroactive to the date of such fire or casualty, and Rent shall be abated or apportioned (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager case may reasonably require be) on a per diem basis and approve. No payment made prior paid to the final completion date of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) such fire or casualty. Termination of the value of the work performed from time to time; funds other than proceeds this Lease by Tenant shall be disbursed prior Tenant’s sole remedy for Landlord’s failure to disbursement of such proceeds; and at all timesrebuild or restore the Parking Deck, the undisbursed balance of such proceeds remaining in Building and/or the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) abovePremises under this Section 15.01.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Samples: Office Lease (Ncino, Inc.)
Casualty. (a) If In the event the Property should be damaged by any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyedcasualty prior to Closing, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer Owner shall give prompt notice thereof to the Indenture Trustee Lessee and Lessee shall have up to twenty (20) business days after receipt of such notice to make its election provided herein (and the Property ManagerClosing shall be extended accordingly). Following If the occurrence cost of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to repairing such damage is less than One Million Dollars ($1,000,000) as reasonably estimated by a contractor approved by Owner and Lessee, then Owner shall assign to Lessee at Closing all insurance proceeds payable for such damage (with the consent of the insurance company), or destructionpay all such proceeds to Lessee when received (which obligation shall survive Closing), all to be effected in accordance with applicable law; provided that if and Lessee shall receive a credit against the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager Purchase Price in the adjustment and collection amount of any amounts received in connection with an Insured Casualty deductible required by Owner’s insurance policies and/or any uninsured amount (up to a maximum of $1,000,000), and the Closing shall be deemed a Property Protection Advance occur and be secured hereby and the Ground Lease shall be reimbursed by the applicable Issuer to the Property Manager pursuant commence, subject to the terms of the Indenture.
(b) In case of loss this Agreement, without Owner’s repairing or damages being required to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of repair such damage; provided however, that Owner shall be obligated to make such emergency repairs as are necessary to prevent further damage to the Property Insurance Policiesor injury to any person thereon and Owner may use insurance proceeds for this limited purpose. If the cost of repairing such damage is One Million Dollars ($1,000,000) or more, then Lessee may elect to terminate this Agreement and receive the following provisions shall apply:
Deposit (i) In the event of an Insured Casualty that and any interest accrued thereon). If Lessee does not exceed the greater of elect to terminate this Agreement, Owner shall assign to Lessee, at Closing, all insurance proceeds payable for such damage (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager insurance company) or pay all such proceeds to Lessee when received (which obligation shall survive Closing), and agree with Lessee shall receive a credit against the insurance company or companies on Purchase Price in the amount of any deductible required by Owner’s insurance policies and/or any uninsured amount (up to be paid upon a maximum of $1,000,000), and the loss. In such caseClosing shall occur and the Ground Lease shall commence, such Issuer is hereby authorized subject to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 , without Owner’s repairing or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Leasebeing required to repair such damage; provided however, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) that Owner shall be collected by the Property Manager, and promptly delivered obligated to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed make such emergency repairs as are necessary to the applicable Issuer prevent further damage to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject injury to any person thereon and Owner may use insurance proceeds for this limited purpose. Owner represents, warrants and covenants to Lessee that the Insured Casualtydeductible under all property insurance policies maintained by Owner regarding the Property does not and will not exceed $1,000,000. If Owner is self-insuring the Property against casualty at the time any such damage occurs, and if Lessee does not terminate this Agreement pursuant to this Section 7.1, then Owner shall pay Lessee the proceeds of all such self-insurance in the manner set forth below, provided, same amount as would have been payable by a third-party insurer under an “all risk” property insurance policy insuring the Indenture Trustee makes Property in the amounts received in connection with such an Insured Casualty available amount of the Purchase Price for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, full replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trusteethereof, together with funds deposited for that purpose any deductible or irrevocably committed to the satisfaction of the Property Manager by or on behalf of uninsured amount under such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph self-insurance program (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect up to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documentsmaximum of $1,000,000).
Appears in 1 contract
Samples: Agreement to Lease and Sell Assets (Tibco Software Inc)
Casualty. (a) If any an Individual Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”a "CASUALTY"), the applicable Issuer Borrowers shall give prompt notice thereof to the Indenture Trustee and the Property ManagerLender. Following the occurrence of an Insured a Casualty, the applicable Issuer Borrowers, regardless of whether Insurance Proceeds are available, shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in law (a safe and secure condition"RESTORATION"). The expenses incurred by the Property Manager Lender in the adjustment and collection of any amounts received in connection with an Insured Casualty Insurance Proceeds shall be deemed a Property Protection Advance become part of the Obligations and be secured hereby by the Loan Documents and shall be reimbursed by Borrowers to Lender upon demand. Notwithstanding any Casualty, Borrowers shall continue to pay the applicable Issuer Obligations in the time and manner set forth in the Notes and in this Agreement. Upon the occurrence of any Casualty, Borrowers shall (subject to the Property Manager pursuant right of Lender to elect to do so as set forth in SECTION 5.2(b)), promptly file a proof of loss with the terms of the Indenturerespective insurance company or companies insuring such Casualty.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of a Casualty where the damage to an Insured Casualty that Individual Property does not exceed the greater lesser of (ax) $100,000.00 or 250,000 and (by) five ten percent (510%) of the Fair Market Value Outstanding Principal Balance due under the Note related to such Individual Property, so long as no Event of the applicable Property or Improvements in connection with a Hybrid LeaseDefault has occurred, the applicable Issuer Borrowers may settle and adjust any claim without the consent of the Property Manager Lender and agree with the insurance company or companies on the amount to be paid upon the lossloss (the "INSURANCE PROCEEDS"); provided that such adjustment is carried out in a competent and timely manner. In such case, provided that no Event of Default shall have occurred and the Restoration can be completed prior to the earlier to occur of (i) the date which is six (6) months following such Issuer Casualty, and (ii) the date which is twelve (12) months prior to the Stated Maturity Date, Borrowers are hereby authorized to collect and to distribute receipt for any such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) Insurance Proceeds. In the event that Borrowers fail to promptly file a proof of loss with respect to any Casualty or fail to promptly and diligently proceed to settle and adjust any claims with respect thereto as required in this clause (b), then Lender shall, at the sole cost and expense of Borrowers, have the right to file such proof of loss, settle and adjust 131 such claim and agree with such insurance company or companies without the consent of Borrowers, and each Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an Insured interest to do so. In the event of a Casualty shall exceed where the greater damage to an Individual Property equals or exceeds the lesser of (ax) $100,000.00 or 250,000 and (by) five ten percent (510%) of the Fair Market Value of Outstanding Principal Balance due under the applicable Properties or Improvements in connection with Note related to such Individual Property (a Hybrid Lease"SIGNIFICANT CASUALTY"), then notwithstanding anything set forth herein to the contrary, at the sole cost and in that eventexpense of Borrower, Lender may elect to file the applicable Issuer may respective proof of loss, settle and adjust any claim without the consent of the Property Manager Borrowers and agree with the insurance company or companies on the amount of the Insurance Proceeds in the place and stead of Borrowers and without the consent of Borrowers, and each Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest to be paid on the loss and shall immediately deposit such amounts received do so. Any Insurance Proceeds in connection with an Insured Casualty into the Casualty therewith (whether or not Lender elects to settle and Condemnation Sub-Account, adjust the claim or Borrowers settle such claim) shall be due and payable solely to Lender and held by Lender in accordance with the terms of the Indenture and this Agreement. In the event any Borrower or any party other than Lender is a payee on any check representing Insurance Proceeds with respect to any Casualty, such Borrower shall immediately endorse, and cause all such third parties to endorse, such check payable to the order of Lender. Each Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to endorse any such check payable to the order of Lender. The expenses incurred by Lender in the adjustment and collection of Insurance Proceeds shall become part of the Obligations, shall be secured by the Loan Documents and shall be reimbursed by Borrowers to Lender upon demand. Each Borrower hereby releases Lender from any and all liability with respect to the settlement and adjustment by Lender of any claims in respect of any Casualty.
(iiic) In the event of loss or damages covered by any of the Policies, the following provisions shall apply with respect to application of Insurance Proceeds:
(i) In the event of a Casualty to an Insured Casualty Individual Property where the loss is in an aggregate amount more less than the greater of (a) $100,000.00 or (b) five forty percent (540%) of the Fair Market Value rentable square footage of the applicable Properties or Improvements in connection with a Hybrid Leasethereon have been destroyed, and if, in the reasonable judgment of Lender, the Property Manager the Property Restoration can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was completed prior to the Insured earlier to occur of (A) the date which is six (6) months following such Casualty and (B) the date which is twelve (12) months prior to the Stated Maturity Date, and if, in the reasonable judgment of Lender, after completion of such Restoration the applicable Individual Property will adequately secure the Outstanding Principal Balance due under the Note related to such Individual Property and will have a value at least equal to the value immediately prior to such Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) Net Proceeds shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer applied to reimburse such Issuer or the subject Tenant Borrowers for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, Restoration in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer . Each Borrower hereby covenants and agrees to commence and diligently prosecute, or cause to prosecute the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuildingRestoration; providedprovided always, that such Issuer or the subject Tenant Borrowers shall pay all costs (and if required by the Property ManagerLender, such Issuer Borrowers shall deposit the total thereof with the Indenture Trustee Lender in advance) of such restoring, repairing, replacing or rebuilding Restoration in excess of the net proceeds Net Proceeds made available pursuant to the terms hereof.
(ivii) Subject to clauses (i)-(iiiExcept as provided in SECTION 5.2(c)(i) above, the Insurance Proceeds collected upon any Casualty shall, at the option of Lender in this Section 3.19(b)its sole discretion, an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) Obligations or applied to reimburse the applicable Issuer or the subject Tenant Borrowers for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, Restoration in the manner set forth below below. If Lender elects to apply any Net Proceeds to the payment of the Obligations prior to the final sale of the Loan in a Secondary Market Transaction, Borrowers shall immediately upon demand reimburse Lender for any and all Hedge Losses resulting, either directly or indirectly, from that portion of the Debt so paid. Additionally, throughout the term of the Loan if an Event of Default has occurred, then Borrowers shall pay to Lender, with respect to any payment of the Debt pursuant to this SECTION 5.2(c)(ii), an additional amount equal to the Yield Maintenance Premium; PROVIDED, HOWEVER, that if an Event of Default has not occurred, then the Yield Maintenance Premium shall not be payable. Any such application to the Debt shall (A) be applied to those payments of principal and interest last due under this Agreement but shall not postpone any payments otherwise required pursuant hereunder other than such last due payments and (B) not cause or result in the Monthly Debt Service Payment Amount (or any of the Xxxxxxxx Monthly Debt Service Payment Amount, the Medford Monthly Debt Service Payment Amount or the Warrenton Monthly Debt Service Payment Amount) being re-cast based upon the reduction of the Outstanding Principal Balance and the number of months remaining until the Maturity Date. In the event Lender elects to apply any Net Proceeds to the payment of the Obligations as set forth herein, Borrowers shall have the option of prepaying the Outstanding Principal Balance of the portion of the Loan applicable to the Individual Property damaged by such Casualty and obtaining a release of such Individual Property from the Liens of the Mortgages and the other Loan Documents without payment of the Yield Maintenance Premium, provided that (A) no Event of Default shall have occurred and be continuing, (B) all accrued and unpaid interest and all other sums due under the applicable Note and the other Loan Documents, including, without limitation, all costs and expenses incurred by Lender or its agents in connection with such prepayment and release of the applicable Individual Property (including, without limitation, the reasonable fees and expenses incurred by attorneys and accountants in connection with the prepayment and the release of such Individual Property) shall be paid in full on or prior to the date such Individual Property is released from the Liens of the Mortgages and the other Loan Documents, and (C) provided Borrowers shall have deposited with Lender sufficient funds to the effect that the aggregate amount of the Net Proceeds applied by Lender hereunder and the prepayment made by Borrowers pursuant to this section shall equal 125% of the Outstanding Principal Balance of the portion of the Loan applicable to such Individual Property as of the date of such prepayment by Borrowers, and all amounts in excess of such Outstanding Principal Balance attributable to such Individual Property shall be deposited by Lender into the Deposit Account and applied to the Reserve Funds in such order and priority as Lender shall determine in its sole discretion, provided, however, that, in the event such amounts are greater than or equal to the Collateral Value deposited into any subaccount(s) of the related PropertyDeposit Account, deposited into the Release Account to such subaccount(s) shall be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicablean interest bearing account.
(viii) In the event the applicable Issuer is Borrowers are entitled to reimbursement out of the amounts Net Proceeds held by the Indenture TrusteeLender, such amounts Insurance Proceeds shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance Lender so long as the Property Manager may reasonably require following conditions have been satisfied:
(A) no Event of Default shall have occurred and approve. No be continuing;
(B) Leases requiring payment made prior of annual rent equal to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of Gross Revenue received by any Borrower during the work performed from time to time; funds other than proceeds twelve (12) month period immediately preceding the Casualty and all Major Leases shall be disbursed prior to disbursement of such proceeds; remain in full force and at all times, effect during and after the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restorationRestoration without abatement of rent beyond the time required for Restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after notwithstanding the occurrence of an Insured such Casualty;
(C) Borrowers shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after such Casualty occurs) and shall diligently pursue the same to satisfactory completion;
(D) Lender shall be satisfied that any operating deficits and all payments of principal and interest under the Notes will be paid during the period required for Restoration from (A) the Net Proceeds, or (B) other funds of Borrowers;
(E) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (A) the date twelve (12) months prior to the Stated Maturity Date, (B) the earliest date required for such completion under the terms of any Lease with respect to such Individual Property, (C) such time as may be required under applicable IssuerLegal Requirements in order to repair and restore the Individual Property to the condition it was in immediately prior to such Casualty or Condemnation, at as applicable, or (D) six (6) months prior to the direction expiration of the insurance coverage referred to in SECTION 5.1.1(a)(iii);
(F) the Individual Property Manager, shall deposit the proceeds of an Insured Casualty in affected by the Casualty and Condemnation Sub-Account the use thereof after the Restoration will be in compliance with and Indenture Trustee permitted under all applicable Legal Requirements;
(G) the Restoration shall make be done and completed by Borrowers in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements; and
(H) such proceeds available, subject only Casualty does not result in the loss of access to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss Individual Property or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan DocumentsImprovements.
Appears in 1 contract
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 any material damage to or (b) five percent (5%) destruction of the Fair Market Value Deed Estate or any part thereof, Grantor will promptly give written notice to Grantee, generally describing the nature and extent of such damage or destruction. No damage to or destruction of the applicable Property or Improvements Deed Estate shall relieve Grantor of its obligation to pay any monetary sum due under the Loan Documents at the time and in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without manner provided in the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related LeaseLoan Documents.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 any damage to or (b) five percent (5%) destruction of the Fair Market Value Deed Estate or any part thereof, Grantor, whether or not the Proceeds, if any, on account of such damage or destruction shall be sufficient for the applicable Properties or Improvements in connection with a Hybrid Leasepurpose, then and in that eventat its expense, shall promptly cause the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount Restoration to be paid on the loss commenced and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreementcompleted.
(iii) In Proceeds received by Grantee and Grantor on account of any occurrence of damage to or destruction of the event Deed Estate or any part thereof, less the costs, fees and expenses incurred by Grantee and Grantor in the collection thereof, including, without limitation, adjuster’s fees and expenses and attorneys’ fees and expenses (the “Net Insurance Proceeds”), shall be paid to (1) Grantor, if the amount of an Insured Casualty where such Net Insurance Proceeds is less than $100,000 and applied by Grantor toward the loss cost of the Restoration, and (2) Grantee, if the amount of such Net Insurance Proceeds is $100,000 or greater. Net Insurance Proceeds paid to Grantee shall be held and disbursed by Grantee, or as Grantee may from time to time direct, as the Restoration progresses, to pay or reimburse Grantor for the cost of the Restoration, upon written request of Grantor accompanied by evidence, reasonably satisfactory to Grantee, that (aa) the Restoration is in an aggregate full compliance with all Applicable Regulations and all private restrictions and requirements, (bb) the amount more than the greater requested has been paid or is then due and payable and is properly a part of such cost, (acc) $100,000.00 there are no mechanics’ or (b) five percent (5%) of the Fair Market Value of the applicable Properties similar liens for labor or Improvements materials Xxxxxxxx Xx. 00000 GE No. 8004-0863 0000 Xxxxxx Xxxx Albany, Georgia theretofore supplied in connection with a Hybrid Leasethe Restoration, (dd) if the estimated cost of the Restoration exceeds the Net Insurance Proceeds (exclusive of Proceeds received from Grantor’s business income insurance), Grantor has deposited into an escrow satisfactory to Grantee such excess amount, which sum will be disbursed pursuant to escrow instructions satisfactory to Grantee, (ee) the balance of such Net Insurance Proceeds, together with the funds deposited into escrow, if any, pursuant to the preceding subsection (dd), after making the payment requested will be sufficient to pay the balance of the cost of the Restoration, and if(ff) the Master Lease is in full force and effect. Upon receipt by Grantee of evidence reasonably satisfactory to it that the Restoration has been completed and the cost thereof paid in full, and that there are no mechanics’ or similar liens for labor or materials supplied in connection therewith, the reasonable judgment balance, if any, of such Net Insurance Proceeds shall be paid to Grantor. If at the time of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior damage or destruction to the Insured Casualty, then, if no Deed Estate or at any time thereafter an Event of Default under the Indenture shall have occurred and be then continuingcontinuing under the Loan Documents, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) all Net Insurance Proceeds shall be collected by the Property Managerpaid to Grantee, and promptly delivered Grantee may retain and apply the Net Insurance Proceeds toward the Obligations whether or not then due and payable, in such order, priority and proportions as Grantee in its discretion shall deem proper, or to and deposited by Indenture Trustee into the Casualty and Condemnation cure such Event of Default, or, in Grantee’s discretion, Grantee may pay such Net Insurance Proceeds Sub-Account, and shall in whole or in part to Grantor to be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for applied toward the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, providedRestoration. If Grantee shall receive and retain Net Insurance Proceeds, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees lien of this Deed to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant Secure Debt shall pay all costs (and if required be reduced only by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee amount received and retained by Grantee and actually applied by Grantee in advance) of such restoring, repairing, replacing or rebuilding in excess reduction of the net proceeds made available pursuant to the terms hereofObligations.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Jameson Inns Inc)
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, “Major Damage” means damage by fire or other casualty (an “Insured Casualty”), the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and Building or the Property Manager. Following Premises that causes the occurrence Premises or any substantial portion of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same Building to be of at least equal value and of substantially the same character as prior to such damage unusable, or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) will cost more than twenty-five percent (525%) of the Fair Market Value predamage value of the applicable Property Building to repair, or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the lossthat is not covered by insurance. In case of Major Xxxxxx, Landlord may elect to terminate this Lease by notice in writing to the Tenant within thirty (30) days after such casedate. If this Lease is not terminated following Major Damage, such Issuer or if damage occurs that is hereby authorized not Major Damage, Landlord shall promptly restore the Premises to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was condition existing just prior to the Insured Casualtydamage, thento the extent insurance proceeds are available to effect such restoration. Tenant shall be responsible for insuring its personal property and trade fixtures located on the Premises and any alterations or tenant improvements it has made to the Premises, if no Event and Tenant shall promptly restore all damage to tenant improvements or alterations installed or paid for by Tenant. Unless the casualty was caused by Tenant, rent shall be reduced from the date of Default under damage until the Indenture date restoration work being performed by Landlord is substantially complete, with the reduction to be in proportion to the area of the Premises not usable by Tenant. Landlord shall have occurred no liability for any damage sustained or claimed to have been sustained by Xxxxxx as a result of interruption of Tenant’s business during the restoration period. Neither Landlord, nor any Landlord Parties will be liable to Tenant or any Tenant Parties for any loss or damage caused by water damage, sprinkler leakage, or any of the risks that are covered by property insurance, or for any business interruption, and there shall be then continuing, no subrogated claim by one party’s insurance carrier against the amounts received in connection with such an Insured Casualty (after reimbursement other party arising out of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, such loss. Landlord and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in grant this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or release on behalf of such Issuer for themselves and their respective insurance companies and each represents and warrants to the other that purpose, it is authorized by its respective insurance company to grant the waiver of subrogation contained in this Section. This release and waiver shall be binding upon the parties whether or not insurance coverage is in force at least sufficient in the reasonable judgment time of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any destruction of the Property Insurance Policies with respect property referred to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documentsthis Section.
Appears in 1 contract
Samples: Lease Agreement
Casualty. (a) If In the event that the Facility or Ancillary Hardware or any Property or Improvements in connection with a Hybrid Lease component thereof shall be materially damaged or destroyed, in whole or in part, destroyed by fire or other casualty (an “Insured Casualty”)casualty, the applicable Issuer shall give prompt notice thereof then, subject to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms requirements of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection agreements with a Hybrid Lease covered by any of lenders providing the Property Insurance PoliciesFacility Financing, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 If the estimated cost to repair, rebuild or (b) five percent (5%) replace the damaged portion of the Fair Market Value Facility or Ancillary Hardware shall be less than $100,000, then OJT shall promptly commence work to accomplish such repair, rebuilding and/or replacement and to bring the Facility and Ancillary Hardware into operating condition in compliance with this Agreement. All proceeds of the applicable Property any insurance recoverable or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent paid on account of the Property Manager and agree with the insurance company or companies on the amount to such casualty shall be paid upon the loss. In such case, such Issuer is hereby authorized over to collect and OJT to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for cover the cost of restoringsuch repair and/or replacement work, repairingand any excess cost not covered by such proceeds shall be deemed to be part of the Reimbursable Expenses for operating the Facility, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject except to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection extent that OJT is required to indemnify Interstate with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available respect thereto pursuant to the terms Section 6.1 hereof.
(ivb) Subject If the estimated cost to clauses (i)-(iii) in this Section 3.19(b)repair or replace the damaged portion of the Facility or Ancillary Hardware equals or exceeds $100,000, an Issuer may elect for proceeds from an Insured Casualty then OJT shall not be obligated to repair, rebuild or Condemnation to be (A) applied replace such damaged portions except to the payment extent that the aggregate amount of the Notes without Make Whole Amount, insurance proceeds and other funds made available by Interstate (Bat no cost to OJT) applied to reimburse the applicable Issuer for such purpose shall equal or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of exceed the estimated cost of completion of the restoration, such repair, replacement and rebuilding, (2) funds or, at rebuilding or replacement. In the Property Manager’s option, assurances reasonably satisfactory to the Property Manager event that such funds are availablesufficient, sufficient in addition OJT shall promptly prepare plans and specifications covering such work and submit the same to the proceeds to Interstate for approval, and upon receipt of such approval, OJT shall diligently commence and complete the proposed restoration, such repair, replacement and rebuilding, and (3) such architect’s certificates, waivers or replacement work. All proceeds of lien, contractor’s sworn statements, title any insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds or payments by Interstate shall be disbursed prior deposited with an escrow agent satisfactory to disbursement of such proceeds; Interstate and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, OJT and shall be at least sufficient in the reasonable judgment of the Property Manager released to pay for OJT periodically to cover the cost of completion of the restoration, work completed in such repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) abovereplacement.
(c) Notwithstanding anything contained herein In the event that any damage to the contrary (including Facility or Ancillary Hardware results in the inability of OJT to use the Facility as contemplated by this Agreement and proceeds from any business interruption insurance are paid or payable to OJT, then any such proceeds actually received by OJT shall be promptly deposited with the escrow agent designated by OJT to receive payments on account of the Base Charge Per Ton due under Section 3.20 below3.4(a), in and to the case extent of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Propertydeposits, the related proceeds shall be applied in accordance with against the related Loan Documentsobligations of Interstate to make such payments required by Section 3.4(a) hereof.
Appears in 1 contract
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer Grantor shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value notify Beneficiary and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection Purchaser of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed loss whether covered by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) insurance or not. In case of loss or damages to a Property not securing a Mortgage Loan damage by fire or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policiesother casualty, the following provisions shall apply:
Beneficiary is authorized (i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may to settle and adjust any claim without the consent of the Property Manager and under insurance policies which insure against such risks, or (ii) to allow Grantor to agree with the insurance company or companies on the amount to be paid upon the in regard to such loss. In such either case, such Issuer the Beneficiary is hereby authorized to collect and to distribute receipt for any such amounts distributed in connection with an Insured Casualty in accordance with insurance money. Such insurance proceeds may, at the terms and provisions option of the related Lease.
(ii) In Beneficiary, be applied in the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) reduction of the Fair Market Value of the applicable Properties Indebtedness secured hereby, whether due or Improvements in connection with a Hybrid Leasenot, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred held by the Property Manager) shall be collected by the Property Manager, Beneficiary without any allowance of interest and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer used to reimburse such Issuer or the subject Tenant Grantor for the cost of restoringthe rebuilding or restoration of buildings or improvements on said Premises. If, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, providedfor any reason, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty Beneficiary elects to make said proceeds available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant Grantor for the cost of restoringthe rebuilding or restoration of the buildings or improvements on said Premises, repairing, replacing or rebuilding such proceeds shall be made available during the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, course of restoration in the manner set forth below or and under the conditions that the Beneficiary may in its sole discretion require, including without limitation, (Ci) provided that Beneficiary's approval of plans and specifications of such amounts are greater than or equal work and approval of the contractors and subcontractors performing such work prior to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer time such work is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuildingcommenced, (2ii) funds orGrantor's delivery of suitable completion or performance bonds and Builder's All Risk insurance, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement (iii) delivery of suitable lien waivers and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds(iv) Grantor's satisfaction of Purchaser's other normal and customary construction loan requirements, plats (v) acknowledgement that no insurer claims any rights of survey participation and/or assignment of rights with respect to the Indebtedness secured hereby, and such other reasonable evidences (vi) the buildings and improvements shall be so restored or rebuilt so as to be of cost, payment at least equal value and performance substantially the same character as the Property Manager may reasonably require and approve. No payment made prior to such damage or destruction. If the final completion of proceeds are made available by the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of Beneficiary to reimburse the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay Grantor for the cost of completion of the said rebuilding or restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any any surplus which may remain out of said insurance proceeds held by the Indenture Trustee after payment of such costs cost of restoration, repair, replacement rebuilding or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuerrestoration shall, at the direction option of the Property ManagerBeneficiary, shall deposit be applied on account of the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make Indebtedness secured hereby or be paid to Grantor. If Beneficiary exercises its option to apply such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any reduction of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such PropertyIndebtedness secured hereby, the related proceeds same shall be applied in accordance with the related Loan Documentsdone without prepayment penalty.
Appears in 1 contract
Samples: Deed of Trust
Casualty. (a) If any Individual Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an a “Insured Casualty”), the applicable Issuer Borrower or Leasehold Pledgor shall give prompt notice thereof to the Indenture Trustee and the Property ManagerLender. Following the occurrence of an Insured a Casualty, the applicable Issuer subject to Borrower’s rights under Section 2.4.4(c) and Section 2.5.3 hereof, Borrower or Leasehold Pledgor, regardless of whether insurance proceeds are available, shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same such Individual Property (or cause Owner to restore, repair, replace or rebuild such Individual Property) in accordance with Legal Requirements to be of at least equal value and of substantially the same character as prior to such damage or destructiondestruction as soon as reasonably practicable (but in no event later than one hundred twenty (120) days after such Casualty. Lender may, all to be effected in accordance with applicable law; provided that if the Property Manager but shall not direct the Indenture Trustee be obligated to make proof of loss if not made promptly by Borrower or Owner. In addition, Lender may, subject to the rights of Mortgage Lender, participate in any amounts received settlement discussions with any insurance companies (and shall approve any final settlement) (i) if an Event of Default is continuing or (ii) with respect to any Casualty in connection with such Insured Casualty available to reimburse which the applicable Issuer for Net Proceeds or the costs of such restoration, repair, replacement completing the Restoration are equal to or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain greater than the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection Alteration Threshold with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer respect to the Property Manager pursuant affected Individual Property, and Borrower shall deliver (or cause Owner to deliver) to Lender all instruments required by Lender to permit such participation. Provided no Event of Default is continuing, and subject to the terms rights of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements Lender, in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured a Casualty that does not exceed where Net Proceeds or the greater costs of (a) $100,000.00 or (b) five completing the Restoration are two percent (52%) of the Fair Market Value Allocated Loan Amount of the applicable any Individual Property or Improvements in connection with a Hybrid Leaseless, Borrower, notwithstanding Section 5.4, may directly obtain and apply the applicable Issuer may settle and adjust any claim without Net Proceeds; provided that such Net Proceeds must be used towards the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty Restoration in accordance with the terms and provisions of hereof. Except as set forth in the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements foregoing sentence, any Insurance Proceeds in connection with a Hybrid Lease, then and in that event, the applicable Issuer may any Casualty (whether or not Lender elects to settle and adjust any the claim without the consent of the Property Manager or Borrower or Leasehold Pledgor causes Owner or Operating Lessee to settle such claim) shall be due and agree with the insurance company or companies on the amount payable solely to be paid on the loss Mortgage Lender and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, held by Mortgage Lender in accordance with the terms of the Indenture and this Mortgage Loan Agreement.
(iii) . In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 Borrower, Leasehold Pledgor, Owner, Operating Lessee or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds party other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or Lender is a payee on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as any check representing Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any Casualty, Borrower or Leasehold Pledgor shall immediately endorse (or cause Owner or Operating Lessee, as applicable, to endorse), and cause all such Propertythird parties to endorse, such check payable to the related proceeds shall be applied in accordance with order of Lender, subject to the related rights of Mortgage Lender under the Mortgage Loan Documents. Borrower and Leasehold Pledgor each hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to endorse any such check payable to the order of Lender, subject to the rights of Mortgage Lender. Borrower and Leasehold Pledgor each hereby release Lender from any and all liability with respect to the settlement and adjustment by Lender of any claims in respect of any Casualty.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Hospitality Investors Trust, Inc.)
Casualty. (a) If all or any part of the Property or Improvements in connection with a Hybrid Lease shall be materially is damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”)casualty, Tenant shall notify Landlord in writing. During any period of time that all or any portion of the Property is rendered untenantable as a result of a fire or other casualty, the applicable Issuer rent shall give prompt notice thereof to xxxxx for the Indenture Trustee and portion of the Property Managerthat is untenantable and not used by Tenant. Following Landlord shall have the occurrence right to terminate this Agreement if: (1) the Property shall be damaged so that, in Landlord’s reasonable judgment, substantial alteration or reconstruction of an Insured Casualtythe Property shall be required, the applicable Issuer shall promptly or (or shall promptly cause the Tenant or Borrower to2) proceed Landlord is not permitted by Law to restore, repair, replace or rebuild the same to be of at least equal value and of Property in substantially the same character form as existed before the fire or casualty. Landlord may exercise its right to terminate this Agreement by notifying Tenant in writing within ninety (90) days after the date of the casualty. If Landlord does not so terminate this Agreement, Landlord shall, at its expense, restore the Property in compliance with applicable Laws and in a good and workmanlike manner to as near the condition which existed immediately prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenturepossible.
(b) In case of loss If all or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any portion of the Property Insurance Policiesshall be made untenantable by fire or other casualty and Landlord has not elected to terminate this Agreement pursuant to its rights to do so set forth above, Landlord shall, with reasonable promptness, cause an architect or general contractor reasonably selected by Landlord to provide Landlord and Tenant with a written estimate of the following provisions amount of time required to substantially complete the repair and restoration of the Property, using standard working methods (“Completion Estimate”). If the Completion Estimate indicates that the Property cannot be made tenantable within one hundred (100) days from the date the repair and restoration is started or such casualty occurs in the last year of the Term, Tenant shall apply:
have the right to terminate this Agreement by giving written notice to the Landlord within ten (i10) days after receipt of the Completion Estimate. In the event of an Insured Casualty that Tenant does not exceed so terminate the greater of (a) $100,000.00 or (b) five percent (5%) of Agreement and Landlord has not completed the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent restoration of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions within one hundred (100) days of the related Leasedate the repair and restoration is started, Tenant may terminate the Agreement on ten (10) days’ prior written notice to Landlord.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Samples: Stock Purchase Agreement (InfuSystem Holdings, Inc)
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer Landlord shall not be required responsible for any damage to perform Tenant’s property, unless such restoration, repair, replacement damage is caused by Landlord’s gross negligence or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure conditionwillful misconduct. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty Tenant shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer responsible to the Property Manager pursuant to the terms of the Indenture.
(b) In case of insure Tenant’s personal property against loss or damages damage. Upon request by Landlord, Tenant shall furnish evidence of such insurance policy or policies to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) Landlord. In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the Tenant fails to obtain insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if as required by the Property Managerthis subparagraph, Landlord may (but shall not be obligated to) purchase such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of Tenant and Tenant shall reimburse Landlord for all associated costs. If flood, fire, storm, other casualty or Act of God shall destroy (or so substantially damage as to be uninhabitable) the Unit, Rent shall xxxxx from the date of such Issuer for that purposedestruction. Landlord and Tenant, may, by written notice, within thirty (30) days of such destruction, terminate this Lease, whereupon Rent and all other obligations hereunder shall be at least sufficient in adjusted between the reasonable judgment parties as of the Property Manager date of such destruction. If the Unit is damaged, but is not rendered wholly uninhabitable by such casualty, Rent shall xxxxx in proportion to pay for the cost of completion percentage of the restorationUnit which has been damaged and Landlord shall restore the Unit as soon as is reasonably practicable, repair, replacement or rebuilding, free and clear of all liens or claims for lienwhereupon full rent shall commence. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, Rent shall not xxxxx nor shall Tenant be entitled to terminate this Lease if any Permitted Lease shall obligate the Tenant thereunder to repair, restore damage or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction destruction of the Property ManagerUnit, shall deposit whether total or partial, is the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any result of the Property Insurance Policies with respect negligence of Tenant or Tenant’s household or its invitees, licensees or guests. For the purposes hereof, “uninhabitable” shall mean that the Unit is not capable of being used as a residence as contemplated in this Lease, whether due to a Property securing a Mortgage Loan physical damage or restrictions resulting from any Condemnation with respect to any such Propertyapplicable building code, the related proceeds shall be applied in accordance with the related Loan Documentshealth code, or other applicable law or governmental regulation.
Appears in 1 contract
Samples: Lease Agreement
Casualty. (a) If Notwithstanding any other provision of this Agreement, if all or any part any Property or Improvements in connection with a Hybrid Lease shall be materially is damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), occurring following the applicable Issuer shall give prompt notice thereof Effective Date and prior to the Indenture Trustee Closing, if such damage affects less than 25% of the rentable square feet of any Property, no party shall have the right to terminate this Agreement, and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer parties shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected nonetheless consummate this transaction in accordance with applicable law; provided that if this Agreement, without any abatement of the Property Manager shall not direct Purchase Price or any liability or obligation on the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection part of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed Seller by the applicable Issuer to the Property Manager pursuant to the terms reason of the Indenture.
(b) In case of loss said destruction or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the lossdamage. In such caseevent, such Issuer is hereby authorized to collect and to distribute such amounts distributed or in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 that all or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination part of any Leases due to such Insured Casualty) Property is damaged by fire or other casualty occurring following the Effective Date and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty Closing (after reimbursement regardless whether or what portion of any reasonable expenses incurred by the Property Manageris rendered unusable) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available this Agreement is not terminated pursuant to the terms hereof.
, the relevant Seller shall, on the Closing Date (iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof and subject to the Insured CasualtyClosing having occurred), in assign to Purchaser, and Purchaser shall have the manner set forth below right to make a claim for and to retain casualty insurance proceeds (less any costs or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held expenses incurred by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made Sellers prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation Closing with respect to any repairs or rebuilding approved by Purchaser in its reasonable discretion (provided that no such approval shall be required for Sellers to take any action reasonably required pursuant to Leases or any documentation related to any indebtedness over the Properties), which such amounts shall not be assigned and shall be remitted to Sellers) received under, the casualty insurance policies in effect with respect to such Property on account of said physical damage or destruction as shall be necessary to perform repairs to the Improvements and/or to rebuild the Improvements to substantially the same condition as the same existed prior to the occurrence of such fire or other casualty, and Purchaser shall receive a credit against the cash due at Closing for the amount of the deductible on such casualty insurance policy. If such damage renders, or is reasonably expected to render, 25% or more of the rentable square feet of any Property, other than those Properties set forth on Schedule 18 hereof (collectively, the related proceeds “Casualty Properties”), unusable for a period of more than six months, Purchaser shall have the right, in its sole discretion to terminate this Agreement by written notice to the Sellers and the Escrow Agent, at which point a portion of the Deposit equal to $3,000,000.00 shall be applied in accordance promptly paid to and retained by Sellers as compensation for the time, costs, expenses and other burdens associated with the related Loan Documentsnegotiation and attempted execution of the transactions described herein and the balance of the Deposit shall be promptly paid to and retained by the Purchaser and the parties shall have no further obligations under this Agreement (except for the Surviving Termination Obligations).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Parkway Properties Inc)
Casualty. (a) If any the Property or Improvements in connection with a Hybrid Lease shall be materially the Building is damaged or destroyedby --------- fire, in whole or in partexplosion, by fire the elements or other casualty (an “Insured Casualty”), causality during the applicable Issuer shall give prompt notice thereof Lease Term so as to render the Indenture Trustee property untenantable or unfit for the normal operation of Tenant's business and if the Property Manager. Following cannot be repaired within 180 days from the date of the occurrence of an Insured Casualtysuch casualty, then the applicable Issuer shall promptly (Lease Term will, at the option of Landlord or shall promptly cause Tenant by written notice to the other within 30 days from the date of such casualty, cease and become null and void from the date of such damage, and Tenant will immediately surrender the Property and all Tenant's interests therein to Landlord and will pay rent only through the time of such casualty, in which event, Landlord may reenter and repossess the Property thus discharged from this lease and may remove all parties therefrom. Should the Property be rendered untenantable or Borrower to) proceed to restoreunfit for the normal operation of Tenant's business, repairbut be repairable within 180 days from the date of the occurrence of said damage, replace or rebuild then Tenant will enter and repair the same with reasonable speed and the rent will not accrue after said casualty or while repairs are being made, but will recommence immediately once the said repairs are substantially completed. If the Property is so lightly injured as not to be rendered untenantable and unfit for the normal operation of at least equal value and of substantially Tenant's business, Tenant agrees to repair the same character as prior to such damage with reasonable promptness and in that case the rent accrued and accruing will not cease or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure conditionterminate. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty partial damage to the Property, such that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent portion of the Property Manager remains tenantable and agree with usable in the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions normal operation of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that eventTenant's business, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall rent will xxxxx proportionately until repairs are substantially completed. Tenant will immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, notify Landlord in the reasonable judgment case of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior fire or other damage to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed Property. Anything herein to the applicable Issuer to reimburse such Issuer or the subject contrary, Tenant will not be liable for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding any repairs in excess of the net available casualty insurance proceeds, plus the amount of any deductible, provided that Tenant has fully insured the Property as required by the terms of this Lease. If the amount of the insurance proceeds made available pursuant exceeds the cost of repairs, then any excess will belong to Tenant. If Landlord or Tenant elect to terminate the Lease as provided herein, Landlord will be entitled to receive all of the insurance proceeds. Landlord will make all insurance proceeds payable with respect to the terms hereof.
(iv) Subject occurrence of such casualty available to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost purpose of restoring, repairing, replacing or rebuilding paying the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or costs (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, when and as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held incurred by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%Tenant) of the value reconstruction and repair of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) aboveProperty.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Casualty. (a) If any Property asset or Improvements in connection with a Hybrid Lease shall be materially property of the Acquired Companies is damaged or destroyed, in whole or in part, destroyed by fire or other casualty event, occurrence or circumstance after the date hereof but prior to the Closing (an a “Insured CasualtyCasualty Loss”), and if the applicable Issuer shall give prompt notice thereof sum of (x) the estimated cost of repairing, replacing or restoring such damaged or destroyed asset or property to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed a condition reasonably comparable to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as its condition prior to such Casualty Loss plus (y) the amount of lost profits associated with such Casualty Loss to the extent that such lost profits are reasonably expected to accrue after the Closing as a result of such damage or destructiondestruction to such asset or property, all each as estimated by a qualified firm reasonably acceptable to be effected in accordance with applicable law; provided that if Purchaser and Seller (the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.“Damage Cost”):
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five is less than one-half percent (50.5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid LeasePurchase Price, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3i) such architect’s certificates, waivers Casualty Loss shall not be taken into account for purposes of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to determining whether the conditions set forth in Article VI of this Agreement have been satisfied, and (ii) Purchaser shall be entitled to receive all casualty insurance proceeds, and which proceeds shall be excluded from the calculation of Net Working Capital;
(b) is greater than one-half percent (0.5%) of the Purchase Price but equal to or less than ten percent (10%) of the Purchase Price, then at Seller’s option, (i) the Purchase Price shall be reduced by the amount of the Damage Cost and such Permitted Lease Casualty Loss shall not affect the Closing, or (ii) Seller shall repair or restore the assets or properties subject to such Casualty Loss to a condition reasonably comparable to their prior condition prior to Closing, and Seller shall be entitled to receive all casualty insurance proceeds in connection with such Casualty Loss. If for whatever reason the repair under subpart (ii) of the immediately preceding sentence is not completed prior to the Closing Date and all conditions set forth in Article VI have been satisfied or waived (other than those conditions that, by their terms, cannot be satisfied until the first sentence Closing) and the Parties are otherwise ready to close, at Purchaser’s option, (x) the Closing shall occur and the Purchase Price payable by Purchaser at Closing shall be reduced by the amount of subparagraph the Damage Cost, less any verified amounts expended by Seller or any Non-Company Affiliate in connection with the repair or restoration actually completed by Seller on the assets or properties subject to Casualty Loss prior to Closing, and (ivy) above.the Closing Date shall be postponed for the amount of time reasonably necessary to complete such restoration or repair not to exceed ninety (90) days; or
(c) Notwithstanding anything contained herein to the contrary is greater than ten percent (including in Section 3.20 below), in the case of loss or damages covered by any 10%) of the Property Insurance Policies with respect Purchase Price, then either Seller or Purchaser may elect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied terminate this Agreement in accordance with the related Loan Documents.Article VII of this Agreement. . 52
Appears in 1 contract
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty any loss or damage occurring to the Facility, Improvements, Catalent Equipment, Client Equipment or Client Space, the Steering Group shall meet and determine whether to rebuild or repair the Facility, Client Space, Improvements, Catalent Equipment and Client Equipment, in which case Section 4.3(A) shall apply or whether to forego rebuilding or repair, in which case, Section 4.3(B) shall apply. The Steering Group shall use commercially reasonable efforts to make a determination regarding repairing or rebuilding within [**] days of the occurrence of the loss, provided that any reconstruction undertaken by Client shall be subject to any restriction imposed by any local authority on the right to access or reconstruct the Facility and performed at the risk of any decision not to rebuild taken by Catalent within [**] days of the occurrence of the loss.
A. If by unanimous decision the Steering Group agrees to rebuild or repair the Facility, Client Space, improvements, Client Equipment and/or Catalent Equipment, Client may claim on its insurance and/or fund the obligation from its own resources. In either case, the principle that Client owns any new Client Equipment and Catalent owns the Improvements and Catalent Equipment shall be preserved and immediately following the reconstruction or replacement, the Residual Value of the Client Equipment and Improvements shall be equal to the Residual Value immediately prior to the loss of or damage to the Client Equipment or Improvements. To the extent that (i) Catalent has additional insurance or (ii) it has insured for a risk that is not included in Client’s insurance obligation in Section 4.2, and if Catalent is able to make a claim in its insurance, then Catalent shall contribute to the cost of reconstruction of the Client Space, provided Catalent’s obligation to contribute shall be limited to the lesser of (i) the difference between the reconstruction cost less the Residual Value of the Improvements and the Client Equipment and (ii) the amount that Catalent receives from its insurer. Until such time as the rebuilding or repair specified in this Section 4.3(A) is complete, Catalent shall [**] to prioritize the use of any suitable shared space of the Site, and [**] to prioritize the use of any suitable shared space of any other Catalent facility, for Product Processing for Client, except that the foregoing obligations shall not apply to any portion of a Catalent facility, including any portion of the Site, which is dedicated exclusively to use by or for another customer, nor shall Catalent be required to breach any of its contractual commitments to other customers. [**] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
B. If by unanimous decision the Steering Group agrees not to rebuild or repair the Facility, Client Space, Improvements, Client Equipment or Catalent Equipment, or if Catalent does not exceed agree to any such rebuilding or repair, or if Client does not agree to any such rebuilding or repair, the greater provisions of this Section 4.3(B) shall apply.
i. Subject to paragraph (ii) below, if the loss falls within Client’s insurance obligation under Section 4.2, Client shall retain the Residual Value of the Client Equipment and pay the remainder of the insurance proceeds for the Client Equipment to Catalent; to the extent a loss falls outside Client’s insurance obligation under Section 4.2, Client shall not be obliged to pay any amount to Catalent;
ii. Catalent shall allow Client to remove any of the Client Equipment that is in Client’s reasonable view salvageable;
iii. If the loss is a loss of the Facility’s functionality on which the Client Space depends and if the loss is a loss for which rebuilding or repair is not commercially reasonable, then Catalent may elect to terminate the Agreement and remove the Client Equipment at Client’s expense. If the immediately preceding sentence does not apply or if the sentence applies but Catalent elects not to terminate the Agreement, Client may elect to (a) $100,000.00 terminate the Agreement and remove the Client Equipment at Client’s expense or (b) five percent (5%) reestablish the Process at a dedicated space in another manufacturing facility of Catalent, such facility to be selected by mutual agreement of the Fair Market Value Parties, and in such event this Agreement shall apply to the rights and obligations of the applicable Property or Improvements in connection with a Hybrid LeaseParties mutatis mutandis, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it until such time as the reestablishment of the estimated cost Process at a dedicated space in another facility is completed, Catalent shall [**] to prioritize the use of completion any suitable shared space at the Site, and [**] to prioritize the use of any suitable shared space of any other Catalent facility, for Product Processing for Client, except that the foregoing obligations shall not apply to the any portion of a Catalent facility, including any portion of the restorationSite, repairwhich is dedicated exclusively to use by or for another customer, replacement and rebuildingnor shall Catalent be required to breach any of its contractual commitments to other customers, (2) funds or, the Parties shall agree upon a reasonable adjustment to pricing for Processing of Product at the Property Manager’s optionshared space and the new facility, assurances reasonably satisfactory (3) subject to the Property Manager prior exhaustion of any remainder of insurance proceeds that otherwise would be paid to Catalent as provided in Section 4.3(B)(i) above, Client shall bear the cost of moving and installing Client Equipment at the new facility along with the cost of any renovations that may be necessary to establish the Process at such funds are availablefacility, sufficient in addition to (4) Client shall bear the proceeds to complete cost of obtaining any Regulatory Approval for the proposed restoration, repair, replacement and rebuildingProcess at such facility, and (35) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior Parties shall agree upon changes to the final completion of applicable quality agreement as appropriate for the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to timenew facility; funds other than proceeds and
iv. Catalent shall be disbursed prior entitled to disbursement of such proceeds; retain any monies it receives from its insurer. [**] Certain information in this document has been omitted and at all times, filed separately with the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free Securities and clear of all liens or claims for lienExchange Commission. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies Confidential treatment has been requested with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documentsomitted portions.
Appears in 1 contract
Samples: Build Out and Commercial Supply Agreement (Pharmacyclics Inc)
Casualty. (a) If any the Property shall sustain a Casualty, Borrower shall give, or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyedcause Mortgage Borrower to give, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer shall give prompt notice thereof of such Casualty to Administrative Agent and shall cause Mortgage Borrower to promptly commence and diligently prosecute to completion the repair and restoration of the Property as nearly as possible to the Indenture Trustee and condition the Property Manager. Following was in immediately prior to such Casualty (a “Restoration”) and otherwise in accordance with Section 5.3 of the occurrence Senior Loan Agreement, it being understood, however, that Borrower shall not be obligated to cause Mortgage Borrower to restore the Property to the precise condition of an Insured Casualtythe Property prior to such Casualty provided the Property is restored, to the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restoreextent practicable and permitted by Legal Requirements, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destructionthe Casualty. Notwithstanding any Casualty, all Borrower shall continue to be effected pay the Debt at the time and in accordance with applicable law; the manner provided that if for its payment in the Property Manager shall not direct Note and in this Agreement and the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse outstanding principal balance of the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer Loan shall not be required reduced until any Net Liquidation Proceeds After Debt Service shall have been actually received and applied by Lender with respect to perform such restorationCasualty, repairafter the deduction of expenses of collection, replacement to the reduction or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain discharge of the Improvements in a safe and secure conditionDebt. The expenses incurred by If the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss is sold, through foreclosure or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policiesotherwise, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement receipt by Lender of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Net Liquidation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies After Debt Service with respect to Casualty, Lender shall have the right, whether or not a Property securing a Mortgage Loan deficiency judgment on the Note shall have been sought, recovered or any Condemnation denied, to receive Net Liquidation Proceeds After Debt Service with respect to any such PropertyCasualty, or a portion thereof sufficient to pay the related proceeds shall be applied in accordance with the related Loan DocumentsDebt.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Casualty. (a) If any Individual Property or Improvements in connection with shall sustain a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer Borrower that owns such Individual Property shall give prompt notice thereof of such Casualty to Lender and shall promptly commence and diligently prosecute to completion the repair and restoration of such Individual Property as nearly as possible to the Indenture Trustee condition such Individual Property was in immediately prior to such Casualty (a “Restoration”) and otherwise in accordance with Section 5.3, it being understood, however, that Borrower shall not be obligated to restore such Individual Property to the precise condition of such Individual Property Manager. Following prior to such Casualty provided such Individual Property is restored, to the occurrence of an Insured Casualtyextent practicable, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, the Casualty. Borrower shall pay all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restorationRestoration whether or not such costs are covered by insurance. Lender may, repair, replacement or rebuilding, such Issuer but shall not be required to perform such restorationobligated to, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection make proof of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed loss if not made promptly by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) Borrower. In the event of an Insured a Casualty that where the loss does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid LeaseRestoration Threshold, the applicable Issuer Borrower may settle and adjust any claim without the consent such claim; provided that (a) no Event of the Property Manager Default has occurred and agree with the insurance company or companies on the amount to be paid upon the lossis continuing and (b) such adjustment is carried out in a commercially reasonable and timely manner. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event of a Casualty where the loss exceeds the Restoration Threshold or if an Insured Casualty shall exceed the greater Event of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid LeaseDefault then exists, then and in that event, the applicable Issuer Borrower may settle and adjust any such claim without only with the consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the Property Manager and agree with the insurance company or companies on the amount opportunity to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Accountparticipate, at Borrower’s cost, in accordance with any such adjustments. Notwithstanding any Casualty, Borrower shall continue to pay the terms of Debt at the Indenture time and in the manner provided for its payment in the Note and in this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Wells Real Estate Investment Trust Inc)
Casualty. (a) If The Trustor will give the Beneficiary prompt notice of -------- damage to or destruction of any Improvements on the Property and in case of loss covered by policies of insurance, the Beneficiary is hereby authorized to make proof of loss if not made promptly by the Trustor or Improvements any lessee. Any expenses incurred by the Beneficiary in connection the collection of insurance proceeds, together with a Hybrid Lease interest thereof from date of any such expense at the per annum interest rate set forth in the Note shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), added to and become a part of the applicable Issuer shall give prompt notice thereof indebtedness secured hereby and all be reimbursed to the Indenture Trustee and the Property ManagerBeneficiary, together with accrued interest thereon, immediately upon demand. Following Upon the occurrence of an Insured Casualtydamage to or destruction of any Improvements, if Beneficiary shall so elect in its sole and unfettered discretion, the applicable Issuer Beneficiary shall promptly (or shall promptly cause make the Tenant or Borrower to) proceed to restore, net proceeds of insurance available for repair, replace restoration and/or reconstruction under the conditions and in the manner specified in the next following paragraph. If Beneficiary shall otherwise determine, then such insurance proceeds shall be applied by the Beneficiary upon or rebuild in reduction of the same indebtedness secured hereby then most remotely to be paid. If the Beneficiary shall require that the Improvements be repaired or rebuilt then the repair, restoration, replacement or rebuilding of the Improvements shall be to a condition of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty destructions. Insurance proceeds made available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain rebuilding of the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by (provided no default exists in the Indenture Trustee, Note or this Deed of Trust or any other Loan Document at the written direction time of the Property Managereach such disbursement), upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited manner determined by Beneficiary. The Beneficiary may require that plans and specifications for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free rebuilding be submitted to and clear approved by the Beneficiary prior to the commencement of all liens or claims for lienthe work. Any surplus which may remain out of said insurance proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds building and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuerrestoration may, at the direction option of the Property ManagerBeneficiary, be applied either on account of the indebtedness secured hereby then most remotely to be paid or be paid to any person or persons entitled thereto. Application or release of proceeds under the provisions hereby shall deposit the not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. No interest shall be allowed on account of any such proceeds of an Insured Casualty or any other funds held in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any hands of the Property Insurance Policies with respect to a Property securing a Mortgage Loan Beneficiary or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documentsdisbursing party hereunder.
Appears in 1 contract
Samples: Deed of Trust (Inco Homes Corp)
Casualty. (a) If any the Property or Improvements in connection with shall sustain a Hybrid Lease shall be materially damaged or destroyedCasualty, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer Borrower shall give prompt notice thereof of such Casualty to Lender and shall promptly commence and diligently prosecute to completion the repair and restoration of the Property as nearly as possible to the Indenture Trustee and condition the Property Manager. Following was in immediately prior to such Casualty (a “Restoration”) and otherwise in accordance with Section 5.3, it being understood, however, that Borrower shall not be obligated to restore the occurrence Property to the precise condition of an Insured Casualtythe Property prior to such Casualty provided the Property is restored, to the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restoreextent practicable, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, the Casualty. Borrower shall pay all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restorationRestoration whether or not such costs are covered by insurance. Lender may, repair, replacement or rebuilding, such Issuer but shall not be required to perform such restorationobligated to, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case make proof of loss or damages to a Property if not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered made promptly by any of the Property Insurance Policies, the following provisions shall apply:
(i) Borrower. In the event of an Insured a Casualty that where the loss does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements Restoration Threshold, in connection with a Hybrid LeaseLender’s reasonable determination, the applicable Issuer Borrower may settle and adjust any claim without the consent such claim; provided that (a) no Event of the Property Manager Default has occurred and agree with the insurance company or companies on the amount to be paid upon the lossis continuing and (b) such adjustment is carried out in a commercially reasonable and timely manner. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event of a Casualty where the loss exceeds the Restoration Threshold, in Lender’s reasonable determination, or if an Insured Casualty shall exceed the greater Event of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid LeaseDefault then exists, then and in that event, the applicable Issuer Borrower may settle and adjust any such claim without only with the consent of Lender (which consent shall not be unreasonably withheld, conditioned or delayed) and Lender shall have the Property Manager and agree with the insurance company or companies on the amount opportunity to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Accountparticipate, at Borrower’s cost, in accordance with any such adjustments. Notwithstanding any Casualty, Borrower shall continue to pay the terms of Debt at the Indenture time and in the manner provided for its payment in the Note and in this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Casualty. (a) If any the Individual Property or Improvements in connection with shall sustain a Hybrid Lease shall be materially damaged or destroyedCasualty, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer Borrower shall give prompt notice thereof of such Casualty to Lender and shall promptly commence and diligently prosecute to completion the repair and restoration of the Individual Property as nearly as possible to the Indenture Trustee condition the Individual Property was in immediately prior to such Casualty (a “Restoration”) and otherwise in accordance with Section 5.3, it being understood, however, that Borrower shall not be obligated to restore the Individual Property Manager. Following to the occurrence precise condition of an Insured Casualtythe Individual Property prior to such Casualty provided the Individual Property is restored, to the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restoreextent practicable, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, the Casualty. The Borrower shall pay all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restorationRestoration whether or not such costs are covered by insurance. Lender may, repair, replacement or rebuilding, such Issuer but shall not be required to perform such restorationobligated to, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection make proof of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed loss if not made promptly by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) Borrower. In the event of an Insured a Casualty that where the loss does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid LeaseRestoration Threshold, the applicable Issuer Borrower may settle and adjust any claim without the consent such claim; provided that (a) no Event of the Property Manager Default has occurred and agree with the insurance company or companies on the amount to be paid upon the lossis continuing and (b) such adjustment is carried out in a commercially reasonable and timely manner. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event of a Casualty where the loss exceeds the Restoration Threshold or if an Insured Casualty shall exceed the greater Event of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid LeaseDefault then exists, then and in that event, the applicable Issuer Borrower may settle and adjust any such claim without only with the consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the Property Manager and agree with the insurance company or companies on the amount opportunity to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Accountparticipate, at Borrower’s cost, in accordance with any such adjustments. Notwithstanding any Casualty, Borrower shall continue to pay the terms of Debt at the Indenture time and in the manner provided for its payment in the Note and in this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Wells Real Estate Investment Trust Inc)
Casualty. Borrower shall promptly notify Lender of any loss in excess of ONE HUNDRED THOUSAND DOLLARS (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”$100,000.00), the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Managerwhether covered by insurance or not. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan damage by fire or Improvements in connection with a Hybrid Lease covered by any other casualty, Lender, or after foreclosure, the holder of the Property Insurance Policiescertificate or certificates of purchase, the following provisions shall apply:
is authorized (i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may to settle and adjust any claim without under insurance policies which insure against such risks (with the consent duty of the Property Manager Lender to meet and confer with Borrower), or (ii) to allow Borrower to agree with the insurance company or companies on the amount to be paid upon in regard to such loss; provided, however, so long as no Event of Default then exists, Borrower shall have the lossright to settle all insurance claims involving amounts up to ONE HUNDRED THOUSAND DOLLARS ($100,000.00) without Lender's involvement or consent and to receive the proceeds directly for application to the costs of restoration. In such either case, such Issuer Lender is hereby authorized to collect and receipt for insurance proceeds in excess of ONE HUNDRED THOUSAND DOLLARS ($100,000.00). Subject to distribute such amounts distributed the preceding Section 1.6(a), provided no Event of Default then exists and Borrower certifies as to same, the net insurance proceeds (after deduction of Lender's out of pocket costs and expenses, if any, in connection with an Insured Casualty in accordance with collecting the terms and provisions same) shall be made available for the restoration or repair of the related Lease.
Property if, in Lender's sole and absolute discretion: (i) restoration or repair and the continued operation of the Property is economically feasible; (ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) no lease has terminated as a result of the Fair Market Value of the applicable Properties loss or Improvements in connection with a Hybrid Leasedamage and all leases remain enforceable under their terms, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
modification; (iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, does not occur in the reasonable judgment six (6) month period preceding the stated Maturity Date and Lender's independent consultant certifies that the restoration of the Property Manager the Property can be restored within twenty-four completed at least ninety (2490) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was days prior to the Insured CasualtyMaturity Date; and (iv) the insurance proceeds are sufficient to complete the restoration or repair or Borrower has deposited with Lender an amount, thenin cash, which Lender, in its sole discretion, determines is necessary, in addition to the net insurance proceeds, to pay in full the cost of the restoration or repair (Borrower's deposit shall be disbursed prior to any disbursement of insurance proceeds held by Lender). Any excess proceeds remaining after completion of such repair shall be distributed first to Borrower to the extent Borrower has deposited funds with Lender for such repair with the balance applied against the Indebtedness. Notwithstanding the foregoing, it shall be a condition precedent to any disbursement of insurance proceeds held by Lender hereunder that Lender shall have approved (x) all plans and specifications for any proposed repair or restoration, (y) the construction schedule, and (z) the architect's and general contractor's contract for all restoration that exceeds ONE HUNDRED THOUSAND DOLLARS ($100,000.00) in the aggregate. Lender may establish other conditions it deems reasonably necessary to assure the work is fully completed in a good and workmanlike manner free of all liens or claims by reason thereof, and in compliance with all applicable laws, rules and regulations. At Lender's option, the net insurance proceeds shall be disbursed pursuant to a construction escrow acceptable to Lender. If an Event of Default then exists, or any of the conditions set forth in clauses (i) through (iv) of this Section 1.6(b) have not been met or satisfied, the net insurance proceeds shall be applied to the Indebtedness in such order and manner as Lender may elect, whether or not due and payable, with any excess paid to Borrower; provided that if no Event of Default under the Indenture shall have occurred and be then continuingexists, the amounts received in connection with such an Insured Casualty (prepayment of the Indebtedness resulting from the application of the insurance proceeds to the Indebtedness shall not be subject to payment of a prepayment premium. Lender may apply any insurance proceeds remaining after reimbursement completion of restoration to the Indebtedness, or if the above conditions are not met, Lender may apply all insurance proceeds to the Indebtedness. In case of loss after foreclosure proceedings have been instituted, the proceeds of any reasonable expenses incurred by such insurance policy or policies, if not applied as aforesaid in rebuilding or restoring the Property Manager) buildings or improvements, shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Propertiespay the Indebtedness and the balance, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purposeif any, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred paid to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) abovepersons entitled thereto.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
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Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer Property Manager shall give prompt notice thereof to the Indenture Trustee and the Property ManagerAdministrative Agent. Following the occurrence of an Insured Casualty, subject to the applicable Issuer Credit Agreement, the Property Manager shall promptly (or shall promptly cause the Tenant or Mortgage Loan Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuildingthat, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer Borrower shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer Borrower to the Property Manager pursuant to the terms of the IndentureCredit Agreement.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer Borrower may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer Borrower is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer Borrower may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture Credit Agreement and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture Credit Agreement shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee Administrative Agent into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer Borrower to reimburse such Issuer Borrower or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee Administrative Agent makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer Borrower hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer Borrower or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer Borrower shall deposit the total thereof with the Indenture Trustee Administrative Agent in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer a Borrower may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, Loan or (B) applied to reimburse the applicable Issuer Borrower or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicablebelow.
(v) In the event the applicable Issuer Borrower is entitled to reimbursement out of the amounts held received by the Indenture TrusteeAdministrative Agent in connection with a Condemnation, such amounts shall be disbursed from time to time by the Indenture TrusteeAdministrative Agent from the Collection Account, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture TrusteeAdministrative Agent, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer Borrower for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee Administrative Agent after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(Aiv)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable IssuerBorrower, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds availableshall be available for distribution to the Tenant for payment of restoration costs, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (ivv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Samples: Property Management and Servicing Agreement (STORE CAPITAL Corp)
Casualty. (a) If any time prior to the Closing any portion of the improvements included in the Real Property is destroyed or Improvements in connection with damaged as a Hybrid Lease result of fire or any casualty, Seller shall promptly notify Purchaser of the same. The rights and obligations of the parties by reason of such destruction or damage shall be as follows:
11.2.1 If the Cost of Repair and Restoration (as hereinafter defined) of such destruction or damage shall be One Million and No/100 Dollars $1,000,000.00 (the “Repair Threshold”) or less and the destruction or damage does not materially damaged or destroyed, in whole or in part, by fire or other casualty impair the use and operation of the public space (an “Insured Casualty”)including restaurants) within the Real Property, the applicable Issuer shall give prompt notice thereof to obligations of the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer parties under this Agreement shall not be required affected by such destruction or damage, and Purchaser shall accept title to perform such restoration, repair, replacement the Property in its destroyed or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure damaged condition. The Purchaser shall pay the Purchase Price without reduction, and Seller shall pay over or assign to Purchaser without recourse all rights to any proceeds of insurance payable with respect to such destruction or damage (less any collection costs incurred by Seller in connection therewith and any costs and expenses incurred by Seller to restore the Property Manager Property, provided that Purchaser has approved of any such settlement of the casualty claim and/or restoration, such approval not to be unreasonably withheld, conditioned or delayed) including the proceeds of any rent loss insurance applicable to the period after Closing, and Purchaser shall receive a credit against the Purchase Price in the adjustment and collection amount of any amounts received in connection with an Insured Casualty deductible.
11.2.2 If the Cost of Repair and Restoration of such destruction or damage shall be deemed a Property Protection Advance exceed the Repair Threshold or the destruction or damage materially impairs the use and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms operation of the Indenture.
public space (bincluding restaurants) In case of loss within the Real Property, then Purchaser shall have the right to terminate this Agreement by notice to Seller given on or damages before the date that is the earlier to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater occur of (a) $100,000.00 ten (10) days after the date of the Cost Notice (as hereinafter defined) or (b) five percent (5%) of the Fair Market Value of Closing. In the applicable Property or Improvements in connection with a Hybrid Leaseevent that Purchaser does not elect to terminate this Agreement as permitted by this Section 11.2.2, the applicable Issuer may settle and adjust any claim without the consent of Purchaser shall accept title to the Property Manager and agree with the insurance company in its destroyed or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty damaged condition in accordance with and subject to the terms and provisions of Section 11.2.1. In the related Lease.
event that the Agreement is terminated pursuant to this Section 11.2.2, (i) the Deposit shall be returned to Purchaser, and (ii) In except as expressly provided for in this Agreement, neither Seller nor Purchaser shall have any further liability or obligation to the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and other under this Agreement.
(iii) In 11.2.3 The term “Cost of Repair and Restoration” shall mean the event amount of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) Seller’s good faith estimate of the Fair Market Value actual cost of repair and restoration. Seller shall send Purchaser notice of the applicable Properties or Improvements in connection with a Hybrid Lease, Cost of Repair and if, in Restoration (the reasonable judgment of “Cost Notice”) promptly after making the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereofaforesaid estimate.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
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Casualty. 20.1 Except as hereinafter provided, damage to or destruction of any portion or all the Shopping Center by fire, the elements or any other cause whatsoever shall not terminate this Lease or entitle Tenant to surrender the leased premises or to any abatement of or reduction in Minimum Rent payable by Tenant hereunder or otherwise affect the respective obligations of the parties. In such event, the Landlord shall proceed with due diligence to collect the proceeds of any available insurance, and Tenant, at its own expense, shall promptly restore the buildings to substantially as good condition and of not less value and utility than immediately prior to the casualty. All plans for restoration shall first be submitted to the Landlord for approval, which approval shall not be unreasonably withheld, and the failure by the Landlord to notify the Tenant of its objections to such plans within fifteen (a15) If any Property or Improvements in connection with a Hybrid Lease days of receipt thereof shall be materially damaged deemed approval by Landlord.
20.2 Tenant shall be reimbursed by the Landlord for its cost of restoring the Shopping Center from the proceeds of insurance received by Landlord, it being understood that Landlord shall not be required to repair or destroyedrebuild any such building or improvements, or to pay any of the expenses or costs thereof in excess of the insurance proceeds paid to it. Such reimbursement shall be made as work by Tenant progresses, but only upon the furnishing to Landlord of assurance satisfactory to the Landlord against mechanics' liens or similar claims and provided that the insurance proceeds in the hands of the Landlord shall at all times be sufficient to pay for the completion of such restoration. Payments by the Landlord to Tenant shall be made upon architect's certificates as to payments and expenditures or amounts then payable for restoration and waivers of lien. Any insurance proceeds not required for the restoration of the leased premises shall be retained by Landlord.
20.3 Anything herein to the contrary notwithstanding, in whole the event of substantial damage to or in part, destruction of the Store by fire or other casualty within the last two (an “Insured Casualty”)2) years of the Term hereof, the applicable Issuer Tenant may terminate this Lease and all its obligations hereunder in which event, all insurance monies paid under any insurance policies with respect to such loss of Landlord's property shall give prompt be payable to and remain the property of Landlord, and Minimum Rent shall abate as of the datx xx such loss or destruction. The election to terminate hereunder shall be made by notice thereof in writing given to Landlord within twenty (20) days of the Indenture Trustee and date of such loss or destruction. For the Property Manager. Following the occurrence purpose of an Insured Casualtythis Article, the applicable Issuer phrase "substantial damage to or destruction of the Store" shall promptly (or shall promptly cause mean if more than 50% of the Tenant or Borrower to) proceed to restore, repair, replace or rebuild principal building above the same to foundations is destroyed and cannot be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer used for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms conduct of the Indentureprincipal business conducted by Tenant therein.
(b) In case 20.4 The parties waive such rights of loss or damages Lease termination as are granted to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any them under the laws of the Property Insurance Policiesstate wherein the Store is located, it being their agreement that the following provisions shall apply:
(i) In rights of termination in the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Leasecasualty, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner as set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purposeherein, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) aboveexclusive.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Samples: Lease Agreement (Sportmart Inc)
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyedIf, in whole or in part, by fire or other casualty (an “Insured Casualty”)during the Operating Term, the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such Hotel incurs minor damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not materially affect the operation of the Hotel or does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value replacement cost of the applicable Property Hotel, by fire, casualty or Improvements in connection other cause, Operator shall, at its sole cost and expense and with a Hybrid Leaseall reasonable diligence, repair or replace the applicable Issuer may settle and adjust any claim without the consent damaged portion of the Property Manager Hotel to substantially the same character as existed prior to the damage or destruction provided replacement is justified in comparison to the anticipated profitability of the Hotel during the remaining Operating Term, and agree provided that the available insurance proceeds (plus the amount of the deductible with respect thereto) permit such repair, rebuilding or replacement. To the extent available and permitted by Operator’s Mortgagee, proceeds from the insurance company described in Article 9 shall be applied to such repairs or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Leasereplacements.
(iib) In the event an Insured Casualty shall damage or destruction to the Hotel from any cause materially and adversely affects the operation of the Hotel or exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value replacement cost of the applicable Properties or Improvements in connection with a Hybrid LeaseHotel, then and in that eventOperator may, subject to the applicable Issuer may settle terms of any Mortgage, commence and adjust any claim without the consent complete repairing, rebuilding or replacement of the Property Manager Hotel to substantially the same character as existed prior to the damage or destruction provided replacement is justified in comparison to the anticipated profitability of the Hotel during the remaining Operating Term, and agree with provided that the available insurance company or companies on proceeds (plus the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iiideductible with respect thereto) permit such repair, rebuilding or replacement. In the event of an Insured Casualty where Operator chooses to not undertake the loss is in an aggregate amount more than the greater of repairs, rebuilding or replacements specified above, either Operator or Manager may terminate this Agreement upon sixty (a60) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior days’ advance written notice to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to other without the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer a termination fee or the subject Tenant for the cost other penalty of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) abovekind.
(c) Notwithstanding anything contained herein Operator shall have the right to direct Manager to discontinue operating the Hotel to the contrary (including in Section 3.20 below), in extent necessary to comply with all Applicable Law or as reasonably necessary for the case of loss or damages covered by any safe and orderly operation of the Property Insurance Policies with respect Hotel. In the event Operator directs Manager to a Property securing a Mortgage Loan discontinue operating the Hotel during any period of the casualty restoration or any Condemnation with respect if the Hotel is otherwise not fully operable, Manager shall receive no Management Fee during such time (but shall receive reimbursement for all reasonable costs and expenses, actually incurred by Manager during such time; provided such costs and expenses are provided to any such Property, the related proceeds shall be applied Operator in accordance with the related Loan Documentswriting and reasonably approved in advance by Operator).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Carey Watermark Investors Inc)
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 any material damage to or (b) five percent (5%) destruction of the Fair Market Value Mortgaged Property or any part thereof, Borrower will promptly give written notice to Lender, generally describing the nature and extent of such damage or destruction. No damage to or destruction of the applicable Mortgaged Property or Improvements shall relieve Borrower of its obligation to pay any monetary sum due under the Loan Documents at the time and in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without manner provided in the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the lossLoan Documents. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.10
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 any damage to or (b) five percent (5%) destruction of the Fair Market Value Mortgaged Property or any part thereof, Borrower, whether or not the Proceeds, if any, on account of such damage or destruction shall be sufficient for the applicable Properties or Improvements in connection with a Hybrid Leasepurpose, then and in that eventat its expense, shall promptly cause the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount Restoration to be paid on the loss commenced and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreementcompleted.
(iii) In Proceeds received by Lender and Borrower on account of any occurrence of damage to or destruction of the event Mortgaged Property or any part thereof, less the costs, fees and expenses incurred by Lender and Borrower in the collection thereof, including, without limitation, adjuster's fees and expenses and attorneys' fees and expenses (the "Net Insurance Proceeds"), shall be paid to (1) Borrower, if the amount of an Insured Casualty where such Net Insurance Proceeds is less than $100,000 and applied by Borrower toward the loss cost of the Restoration, and (2) Lender, if the amount of such Net Insurance Proceeds is $100,000 or greater. Net Insurance Proceeds paid to Lender shall be held and disbursed by Lender, or as Lender may from time to time direct, as the Restoration progresses, to pay or reimburse Borrower for the cost of the Restoration, upon written request of Borrower accompanied by evidence, reasonably satisfactory to Lender, that (aa) the Restoration is in an aggregate full compliance with all Applicable Regulations and all private restrictions and requirements, (bb) the amount more than the greater requested has been paid or is then due and payable and is properly a part of such cost, (acc) $100,000.00 there are no mechanics' or (b) five percent (5%) of the Fair Market Value of the applicable Properties similar liens for labor or Improvements materials theretofore supplied in connection with a Hybrid Leasethe Restoration, (dd) if the estimated cost of the Restoration exceeds the Net Insurance Proceeds (exclusive of Proceeds received from Borrower's business income insurance), Borrower has deposited into an escrow satisfactory to Lender such excess amount, which sum will be disbursed pursuant to escrow instructions satisfactory to Lender, and if(ee) the balance of such Net Insurance Proceeds, in together with the reasonable judgment funds deposited into escrow, if any, pursuant to the preceding subsection (dd), after making the payment requested will be sufficient to pay the balance of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment cost of the impact Restoration. Upon receipt by Lender of evidence reasonably satisfactory to it that the Restoration has been completed and the cost thereof paid in full, and that there are no mechanics' or similar liens for labor or materials supplied in connection therewith, the balance, if any, of such Net Insurance Proceeds shall be paid to Borrower. If at the time of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior damage or destruction to the Insured Casualty, then, if no Mortgaged Property or at any time thereafter an Event of Default under the Indenture shall have occurred and be then continuingcontinuing under the Loan Documents, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) all Net Insurance Proceeds shall be collected by the Property Managerpaid to Lender, and promptly delivered Lender may retain and apply the Net Insurance Proceeds toward the Obligations whether or not then due and payable, in such order, priority and proportions as Lender in its discretion shall deem proper, or to and deposited by Indenture Trustee into the Casualty and Condemnation cure such Event of Default, or, in Lender's discretion, Lender may pay such Net Insurance Proceeds Sub-Account, and shall in whole or in part to Borrower to be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for applied toward the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, providedRestoration. If Lender shall receive and retain Net Insurance Proceeds, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant lien of this Mortgage shall pay all costs (and if required be reduced only by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee amount received and retained by Lender and actually applied by Lender in advance) of such restoring, repairing, replacing or rebuilding in excess reduction of the net proceeds made available pursuant to the terms hereofObligations.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Casualty. If during the Lease Term the Premises or the Building are totally or partially damaged or destroyed by a casualty, thereby rendering the Premises totally or partially inaccessible or unusable, Landlord shall diligently (ataking into account the time necessary to effectuate a satisfactory settlement with any insurance company involved) restore and repair the Premises and the Building to substantially the same condition they were in prior to such damage; provided, however, if Landlord reasonably believes that the repairs and restoration cannot be completed despite reasonable efforts within ninety (90) days after the occurrence of such damage, Landlord shall promptly notify Tenant of the estimated repair time and either Landlord or Tenant shall have the right, at its sole option, to terminate this Lease by giving written notice of termination to the other within forty-five (45) days after the occurrence of such damage. If this Lease is terminated pursuant to the preceding sentence, all rent payable hereunder shall be apportioned and paid to the date of the occurrence of such damage. Until the repair and restoration of the Premises is completed Tenant shall be required to pay rent only for that part of the Premises that Tenant is able to use while repairs are being made, based on the ratio that the amount of usable rentable area bears to the total rentable area in the Premises; provided that if the damages result from the negligence or willful misconduct of Tenant or its employees or contractors, Landlord shall only allow Tenant a proportional abatement of rent to the extent Landlord is reimbursed from the proceeds of rental interruption insurance purchased by Landlord. Landlord shall bear the costs and expenses of repairing and restoring the Premises, except that if such damage or destruction was caused by the act or omission of Tenant or any Property of its employees, agents, licensees, subtenants, customers, clients, family members, or Improvements guests, upon written demand from Landlord Tenant shall pay to Landlord the amount by which such costs and expenses exceed the insurance proceeds, if any, received by Landlord on account of such damage or destruction. Nothing in connection with a Hybrid this Lease shall be materially damaged construed as requiring Landlord to spend more than the net proceeds of any insurance available to it for any restoration, repair or destroyedrebuilding. If Landlord fails to timely substantially complete such repair and restoration within the longer of ninety (90) days or thirty (30) days after the expiration of the repair time estimated by Landlord (notice to which was provided to Tenant within thirty (30) days after the casualty), then Tenant shall have the option, upon written notice to Landlord given before the first to occur of such substantial completion or fourteen (14) days after the expiration of the aforesaid period, to elect to terminate this Lease; Tenant's failure to timely exercise such termination right shall be a conclusive waiver of such right. Notwithstanding anything contained in this Section to the contrary, if Tenant is deprived of the use of all or any portion of the Premises by reason of such damage or destruction and such damage or destruction occurs during the last twelve (12) months of the Lease Term (giving due consideration to any extension thereof), and if, in whole or in part, by fire or other casualty (an “Insured Casualty”)Landlord's reasonable judgment, the applicable Issuer time needed for such repair and restoration is sixty (60) days or more, then either party shall give prompt notice thereof have the right to terminate this Lease, effective as of the Indenture Trustee and the Property Manager. Following the occurrence date of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs by giving written notice of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer election to the Property Manager pursuant to the terms of the Indenture.
other party within sixty (b60) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property days after the occurrence of an Insured Casualtysuch damage or destruction and, if such notice of termination is given, Landlord shall not be obligated to repair the applicable Issuer, at damage and restore the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) aboveProperty.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Samples: Lease Agreement (Edutrek Int Inc)
Casualty. In the event of loss of, or damage to the Building or the Property or any portion thereof by fire or other casualty, the rights and obligations of the parties hereto shall be as follows:
(a) If the Premises, or any Property or Improvements in connection with a Hybrid Lease part thereof, shall be materially damaged or destroyed, in whole or in part, by fire or other casualty casualty, (an “Insured Casualty”), the applicable Issuer x) Tenant shall give prompt notice thereof to Landlord, (y) Landlord, upon receiving such notice, shall, to the Indenture Trustee extent such items are not research and development or tenant specific, proceed promptly and with due diligence, subject to unavoidable delays and the Property Manager. Following the occurrence terms of an Insured Casualtythis Article 13.0, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same cause to be of at least equal value and of substantially the same character as prior to repaired, such damage with respect to the foundation, floor slab, structure, roof, exterior doors and walls, exterior windows and facade and utility connections from the street to the inside of the Building (but not including distribution within the Building) and (z) upon notice from Landlord (“Landlord’s Restoration Directive Notice”) Tenant shall proceed promptly and with due diligence, subject to unavoidable delays and the terms of this Article 13.0, to repair, or destruction, all cause to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuildingrepaired, such Issuer damage which is research and development and or tenant specific and all other damage not specifically to be repaired by Landlord pursuant to the forgoing language of this sentence (collectively, “Tenant’s Improvements”); provided, however, Tenant shall not be required to perform such restorationcommence installation of Tenant’s Improvements sooner than is practical and reasonable given the progress of Landlord’s required repair work. Notwithstanding anything in this Lease to the contrary, repair, replacement or rebuilding, provided, further, that such Issuer Landlord shall take at its own expense such steps as may not be reasonably required to put (i) repair any Tenant’s Improvements or (ii) expend for repairs any amount in excess of the net insurance proceeds obtained by Landlord and maintain made available to Landlord less all costs and expenses including adjustor’s and attorney’s fees of obtaining such insurance proceeds. In addition, Landlord’s obligations shall be subject to the rights of Mortgagees, applicable laws, including, without limitation, zoning laws and building codes then in existence, and insurance regulations. If the Premises or any part thereof shall be rendered untenantable by reason of such damage and, provided such damage was not caused or exacerbated by any act or omission of Tenant or any agent, contractor, employee of Tenant or any other person or entity claiming by, through or under Tenant, Annual Base Rent shall proportionately xxxxx for the period from the date of such damage to the date Landlord has substantially completed Landlord’s restoration obligations under this Section 13.0 (a), and thereafter until the earliest to occur of the following: (o) the date on which Tenant substantially completes Tenant’s restoration obligations under this Article 13.0, “CASUALTY”, (oo) the date that is 90 days after substantial completion of Landlord’s restoration work, or (ooo) the date on which the rental interruption insurance maintained by Landlord is exhausted. All proceeds for damages to Tenant’s Improvements shall be paid directly to Landlord and such funds shall be disbursed in a safe and secure condition. The expenses incurred by accordance with the Property Manager in following conditions:
(1) At the adjustment and collection time of any amounts received disbursement, Tenant shall not be in connection default under this Lease and no condition shall exist which with an Insured Casualty the passage of time or giving of notice would constitute a default under this Lease and no mechanics’ or materialmen’s liens shall have been filed and remain undischarged and unbonded.
(2) Tenant shall have obtained Landlord’s advance approval with respect to all architects, contracts, contractors and plans and specifications relating to restoration of Tenant’s Improvements and all of the other requirements of this Lease relating to alterations and improvements by Tenant shall have been satisfied.
(3) Each request for disbursement shall be deemed a Property Protection Advance and be secured hereby made to Landlord and shall be reimbursed accompanied by a certificate of Tenant, signed by an officer of Tenant describing the completed work for which payment is requested, stating the cost incurred in connection therewith and stating that Tenant has not previously received payment for such work. The certificate to be delivered by Tenant upon completion of the work shall, in addition, state that the work has been completed and complies with the applicable Issuer to the Property Manager pursuant to the terms requirements of the Indenturethis Lease and all legal requirements and insurance requirements.
(b4) In case Upon receipt by Landlord of loss or damages (A) evidence, satisfactory to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any Landlord (including, without limitation, architects’ certificates), of the Property Insurance Policiesstage of completion, the following provisions estimated cost of completion, and that the work performed to date has been performed in a good and workmanlike manner in accordance with the contracts and plans and specifications approved by Landlord, (B) waivers of liens and (C) other evidence of cost and payment such that Landlord can verify that the amounts disbursed from time to time are represented by work that is in fact completed in place and free and clear of mechanics’ liens and mechanics’ lien enforcement actions, then, provided that the other conditions of this Article 13 have been satisfied, Landlord shall applymake a disbursement from time to time in an amount not exceeding the cost of the work completed since the last disbursement; provided that in no event shall the total amount disbursed be such that the amount remaining undisbursed is insufficient to complete the restoration of Tenant’s Improvements. The final disbursement shall not be made until the follow items have been received by Landlord:
(i) In the event copies of an Insured Casualty that does not exceed the greater of (a) $100,000.00 invoices for labor, materials or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements equipment charges incurred by Tenant in connection with a Hybrid Lease, the applicable Issuer may settle Tenant’s Improvements,
(ii) copies of “as-built” plans of Tenant’s Improvements prepared and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with certified by Tenant’s architect,
(iii) an Insured Casualty affidavit from Tenant’s architect that Tenant’s Improvements have been completed in accordance with the terms plans approved by Landlord
(iv) final lien waivers from all contractors, subcontractors and provisions material suppliers engaged in restoration of Tenant’s Improvements, and
(v) a copy of the related LeaseCertificate of Occupancy for the Premises issued after the restoration of Tenant’s Improvements.
(ii5) In Landlord shall have the event an Insured Casualty shall exceed the greater of right to retain ten (a) $100,000.00 or (b) five percent (510%) percent from each disbursement until restoration of the Fair Market Value of the applicable Properties or Tenant’s Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and ifis, in the reasonable judgment of Landlord, completed including the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination issuance of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event necessary certificate of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereofoccupancy.
(iv6) Subject Prior to clauses (i)-(iii) in this Section 3.19(b)commencement of such restoration and at any time during such restoration, an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of if the estimated cost of such restoration, as reasonably determined by Landlord, exceeds the amount of the insurance funds being held by Landlord for such restoration, the amount of such excess shall be paid by Tenant to Landlord to be added to such insurance funds prior to any further disbursement, or Tenant shall fund at Tenant’s own expense the costs of such restoration until the remaining insurance funds being held by Landlord for such restoration are sufficient for the completion of such restoration. Upon completion of such restoration by Tenant as required under this Lease, and provided Tenant is not then in default under this Lease and no condition shall exist which with passage of time or the restorationgiving of notice would constitute a default under this Lease, repairany remaining sum being held by Landlord and relating to such restoration shall be paid to Tenant.
(7) Upon the default of Tenant under this Lease, replacement including without limitation, Tenant’s failure to proceed promptly and rebuildingwith due diligence to restore Tenant’s Improvements, (2) funds orLandlord shall be entitled to retain such portion of such insurance proceeds as Landlord may determine reflects Landlord’s cost for Landlord to perform Tenant’s obligations under this Lease; provided however that, while Landlord has the right to perform Tenant’s obligations under this Lease to rebuild Tenant’s Improvements and Landlord may retain such portion of such insurance proceeds, Landlord, at Landlord’s election, may nevertheless elect to simply retain such proceeds as compensation for Tenant’s failure to restore Tenant’s Improvements.
(b) If, as a result of fire or other casualty, the whole or a substantial portion of the Building or the Property Manageris rendered untenantable, Landlord, within one hundred twenty (120) days from the date of such fire or casualty, may either (A) terminate this Lease by notice to Tenant, specifying a date not less than twenty (20) nor more than forty (40) days after the giving of such notice on which the Term of this Lease shall terminate or (B), notify Tenant of Landlord’s option, assurances reasonably satisfactory intent to repair the damage to the Building and other portions of the Property Manager that as a result of such funds are availablefire or other casualty, sufficient which notice (“Landlord’s Restoration Notice”) shall include an estimate of how long (from the date of Landlord’s Restoration Notice) Landlord expects it will take to complete such repairs (the “Estimated Restoration Period”). If the Estimated Restoration Period is longer than 14 months or if the end of the Estimated Restoration Period is beyond the expiration of the Term or if the Estimated Restoration Period is longer than 8 months and at the end of the Estimated Restoration Period the duration of the remaining Term would be less than 12 months, provided the fire or other casualty was not due in addition whole or in part or exacerbated in whole or in part by any act or omission of Tenant and provided Tenant is not in default under this Lease and no condition known to Tenant or Landlord exists which with the passage of time or the giving of notice would constitute a default under this Lease, Tenant may terminate this Lease by notice to Landlord within 15 days of the date of Landlord’s Restoration Notice, specifying a date not less than twenty (20) nor more than forty (40) days after the date of Landlord’s Restoration Notice on which the Term of this Lease shall terminate. If neither Landlord or Tenant elects to terminate this Lease as contemplated above in this Paragraph (b) of this Article, then Landlord shall (to the proceeds extent of Landlord’s repair and restoration obligations in paragraph (a) above in this Article) proceed with diligence to complete repair the proposed restoration, repair, replacement damage to the Building and rebuilding, and (3) such architect’s certificates, waivers other portions of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager as a result of such fire or other casualty and the Annual Base Rent shall meanwhile proportionately xxxxx, all as provided in Paragraph (a) of this Article. However, if Landlord fails to repair and restore the Building or other portions of the Property (to the extent applicable and to the extent of Landlord’s repair and restoration obligations in paragraph (a) above in this Article) within sixteen (16) months from the date of such fire or other casualty, Tenant within thirty (30) days from the expiration of such sixteen (16) month period or from the expiration of any extension thereof by reason of unavoidable delays as hereinafter provided, may reasonably require terminate this Lease by notice to Landlord (“Tenant’s Casualty Termination Notice”), specifying a date that is at least sixty (60) days after the giving of Tenant’s Casualty Termination Notice on which the Term of this Lease shall terminate; provided however that if Landlord has substantially repaired and approve. No payment made restored the Building and any other portions of the Property (to the extent applicable and to the extent of Landlord’s repair and restoration obligations in paragraph (a) above in this Article) prior to the final completion expiration of the restorationsuch minimum 60 day period, repair, replacement then this Lease shall not terminate and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds Tenant’s Casualty Termination Notice shall be disbursed prior null and void. The period within which the required repairs may be accomplished shall be extended by the number of days lost as a result of unavoidable delays, which term shall be defined to disbursement of such proceeds; and at include all times, the undisbursed balance of such proceeds remaining delays referred to in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary Article contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) aboveherein entitled “INABILITY TO PERFORM - EXCULPATORY CLAUSE”.
(c) Notwithstanding anything contained herein Landlord shall not be required to repair or replace any of Tenant’s Improvements or any of Tenant’s business machinery, equipment, cabinet work, furniture, personal property or other installations or improvements and no damages, compensation or claim shall be payable by Landlord for inconvenience, loss of business or annoyance arising from any repair or restoration of the contrary Building, the Property or any portion thereof.
(including d) The provisions of this Article shall be considered an express agreement governing any instance of damage or destruction of the Premises, the Building or any portion thereof by fire or other casualty, and any law now or hereafter in Section 3.20 below), force providing for such a contingency in the case absence of loss or damages covered by express agreement shall have no application.
(e) In the event of any termination of this Lease pursuant to this Article, the Term of this Lease shall expire as of the Property Insurance Policies effective termination date as fully and completely as if such date were the date originally fixed herein for the end of the Term of this Lease.
(f) Landlord’s Architect’s certificate, given in good faith, shall be deemed conclusive of the statements therein contained and binding upon Tenant with respect to a Property securing a Mortgage Loan the performance and completion of any repair or any Condemnation with respect restoration work undertaken by Landlord pursuant to any such Property, this Article or the related proceeds shall be applied in accordance with the related Loan DocumentsArticle contained herein entitled “CONDEMNATION - EMINENT DOMAIN”.
Appears in 1 contract
Samples: Building Lease (D8 Holdings Corp.)
Casualty. (a) If any the Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an a “Insured Casualty”), the applicable Issuer Borrower shall give prompt notice thereof to the Indenture Trustee and the Property ManagerLender. Following the occurrence of an Insured a Casualty, the applicable Issuer Borrower, regardless of whether insurance proceeds are available, shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same Property (or cause Owner to restore, repair, replace or rebuild the Property) in accordance with Legal Requirements to be of at least equal value and of substantially the same character as prior to such damage or destruction. Lender may, all to be effected in accordance with applicable law; provided that if the Property Manager but shall not direct the Indenture Trustee be obligated to make proof of loss if not made promptly by Borrower or Owner. In addition, Lender may, subject to the rights of Senior Lender, participate in any amounts received settlement discussions with any insurance companies (and shall approve any final settlement) (i) if an Event of Default is continuing or (ii) with respect to any Casualty in which the Net Proceeds or the costs of completing the Restoration are equal to or greater than One Million and No/100 Dollars ($1,000,000) and Borrower shall deliver (or cause Owner to deliver) to Lender all instruments required by Lender to permit such participation. Except as set forth in the foregoing sentence, any Insurance Proceeds in connection with such Insured any Casualty available (whether or not Lender elects to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any the claim without the consent of the Property Manager or Borrower causes Owner to settle such claim) shall be due and agree with the insurance company or companies on the amount payable solely to be paid upon the loss. In such case, such Issuer is hereby authorized to collect Senior Lender and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, held by Senior Lender in accordance with the terms of the Indenture and this Senior Loan Agreement.
(iii) . In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 Borrower, Owner or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds party other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or Lender is a payee on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as any check representing Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any Casualty, Borrower shall immediately endorse (or cause Owner to endorse), and cause all such Propertythird parties to endorse, such check payable to the related proceeds shall be applied in accordance with order of Lender, subject to the related rights of Senior Lender under the Senior Loan Documents.. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to endorse any such check payable to the order of Lender, subject to the rights of Senior Lender. Borrower hereby releases Lender from any and all liability with respect to the settlement and adjustment by Lender of any claims in respect of any Casualty.
Appears in 1 contract
Samples: Mezzanine Loan Agreement
Casualty. 8.1 Should the Premises (aor any part thereof) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, destroyed by fire or other casualty insured under Landlord's standard fire and casualty insurance policy with approved standard extended coverage endorsement applicable to the Premises, Landlord shall, except as otherwise provided herein, repair and/or rebuild the Premises to the same condition as existed on the Commencement Date with reasonable diligence, commencing the work within 90 days after such damage (an “Insured Casualty”subject to delays in the adjustment of insurance). Landlord shall promptly and diligently seek adjustment of insurance proceeds after any casualty. Landlord's obligation hereunder shall be limited to the Office Unit and improvements originally provided by Landlord at the Commencement Date of the Term, the applicable Issuer net proceeds of insurance recovered for the casualty damage, and shall give prompt notice thereof be subject to zoning and building laws or ordinances then in existence. If there should be interference with the operation of Tenant's business in the Premises as a result of such damage or destruction which requires Tenant as a result of such damage or destruction to temporarily close its business, the Fixed Basic Rent and Additional Rent shall xxxxx in proportion to the Indenture Trustee square footage of the Premises that Tenant is unable to utilize as a result of the casualty, for the period commencing with the damage and ending upon Landlord’s completion of its restoration work, or at such earlier date as Tenant is able to resume use the Property Managerentire Premises. Following the occurrence of an Insured CasualtyUnless this Lease is terminated by Landlord as hereinafter provided, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restoreshall, at its cost and expense, repair, replace or rebuild restore, redecorate and re-fixture the same Premises and restock the contents thereof in a manner and to be of at least a condition equal value and of substantially the same character as to that existing prior to such damage or destruction, all destruction except for the Office Unit and improvements to be effected reconstructed by Landlord as above set forth, and the proceeds of all insurance carried by Tenant on the property, decorations and improvements, as well as fixtures and contents in accordance with applicable law; provided that if the Property Manager Premises, shall not direct be held in trust by Tenant for such purposes. Tenant agrees to commence such work within ten (10) days after the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs date of such restoration, repair, replacement damage or rebuilding, such Issuer shall not be destruction or the date Landlord substantially completes any reconstruction required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred completed by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager it pursuant to the terms of the Indentureabove, whichever date is later, and Tenant shall diligently pursue such work to its completion.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) 8.2 Notwithstanding anything to the contrary contained hereinin the preceding Paragraph 8.1 or elsewhere in this Lease, if any Permitted Landlord may terminate this Lease shall obligate the Tenant thereunder on thirty (30) days’ notice to repairTenant, restore or rebuild the affected Property given within ninety (90) days after the occurrence of an Insured Casualtyany damage or destruction if: (1) the Premises are damaged or destroyed as a result of a risk which is not covered by Landlord's insurance, (2) the applicable Issuer, at Premises are damaged and the direction cost to repair the same shall be more than twenty-five percent (25%) of the Property Managercost of replacement thereof, shall deposit (3) the proceeds Premises are damaged during the last two (2) years of the Term, (4) if the Office Unit is damaged (whether or not the Premises are damaged) to such an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below)extent that, in the case sole judgment of loss Landlord, the Office Unit cannot be operated as an integral unit, (5) if available insurance proceeds for the Office Unit are insufficient to repair or damages covered by rebuild the damage, (6) if any mortgagee shall not permit the applicable of adequate insurance proceeds for repair or restoration, or (7) if the casualty results in damage to the Premises which Landlord reasonably estimates will take in excess of 12 months after the beginning of restoration to restore the Premises to the same condition as existed on the Commencement Date. Tenant may terminate this Lease, upon thirty (30) days prior written notice to Landlord given within ninety (90) days after the occurrence of any casualty event if: (i) the Premises are damaged or destroyed and Landlord’s estimate of time to complete repairs (given within sixty (60) days after such casualty) is greater than two hundred seventy (270) days, or (ii) the Premises or Office Unit is damaged within the last twelve (12) months of the Property Insurance Policies with respect Term.
8.3 Tenant agrees that Landlord's obligation to a Property securing a Mortgage Loan restore, and the rental abatement provided in this Article, shall be Tenant's sole recourse against Landlord in the event of casualty damage to the Premises, and Tenant waives any other rights Tenant may have under any applicable law or any Condemnation with respect other Article of this Lease to any such Property, terminate this Lease or seek damages against Landlord by reason of casualty damage to the related proceeds shall be applied in accordance with Premises or the related Loan DocumentsOffice Unit. This Article represents the entire agreement between the parties respecting casualty damage to the Premises or the Office Unit.
Appears in 1 contract
Samples: Lease Agreement (Duolingo, Inc.)
Casualty. (a) If any Individual Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an a “Insured Casualty”), the applicable Issuer Borrower shall give prompt notice thereof to the Indenture Trustee and the Property ManagerLender. Following the occurrence of an Insured a Casualty, the applicable Issuer subject to Borrower’s rights under Section 2.4.4(c) and Section 2.5.3 hereof, Borrower, regardless of whether insurance proceeds are available, shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same such Individual Property (or cause Owner to restore, repair, replace or rebuild such Individual Property) in accordance with Legal Requirements to be of at least equal value and of substantially the same character as prior to such damage or destructiondestruction as soon as reasonably practicable (but in no event later than one hundred twenty (120) days after such Casualty. Lender may, but shall not be obligated to make proof of loss if not made promptly by Borrower or Owner. In addition, Lender may, subject to the rights of Mortgage Lender, participate in any settlement discussions with any insurance companies (and shall approve any final settlement) (i) if an Event of Default is continuing or (ii) with respect to any Casualty in which the Net Proceeds or the costs of completing the Restoration are equal to or greater than the Alteration Threshold with respect to the affected Individual Property, and Borrower shall deliver (or cause Owner to deliver) to Lender all instruments required by Lender to be effected permit such participation. Provided no Event of Default is continuing, and subject to the rights of Mortgage Lender, in accordance with applicable lawthe event of a Casualty where Net Proceeds or the costs of completing the Restoration are $250,000 or less, Borrower , notwithstanding Section 5.4, may directly obtain and apply the Net Proceeds; provided that if such Net Proceeds must be used towards the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty Restoration in accordance with the terms and provisions of hereof. Except as set forth in the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements foregoing sentence, any Insurance Proceeds in connection with a Hybrid Lease, then and in that event, the applicable Issuer may any Casualty (whether or not Lender elects to settle and adjust any the claim without the consent of the Property Manager or Borrower causes Owner to settle such claim) shall be due and agree with the insurance company or companies on the amount payable solely to be paid on the loss Mortgage Lender and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, held by Mortgage Lender in accordance with the terms of the Indenture and this Mortgage Loan Agreement.
(iii) . In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 Borrower, Owner or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds party other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or Lender is a payee on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as any check representing Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any Casualty, Borrower shall immediately endorse (or cause Owner to endorse), and cause all such Propertythird parties to endorse, such check payable to the related proceeds shall be applied in accordance with order of Lender, subject to the related rights of Mortgage Lender under the Mortgage Loan Documents. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to endorse any such check payable to the order of Lender, subject to the rights of Mortgage Lender. Borrower hereby releases Lender from any and all liability with respect to the settlement and adjustment by Lender of any claims in respect of any Casualty.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (W2007 Grace Acquisition I Inc)
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer Grantor shall give Beneficiary prompt notice thereof of any loss or damage to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the IndentureTrust Property.
(b) In case of loss or damages damage to a the Trust Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policiesinsurance policies described in Section 10 above, Beneficiary (or, after a trustee's sale or sheriff's sale under this Deed of Trust, the following provisions shall apply:
purchaser at such sale) is hereby authorized at its option either (i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may to settle and adjust any claim under such insurance policies without the consent of the Property Manager Grantor or (ii) to allow Grantor to settle and agree adjust such claim (either jointly with the insurance company Beneficiary or companies on the amount to be paid upon the loss. In such caseby Grantor alone, such Issuer at Beneficiary's discretion); provided that in either case Beneficiary shall, and is hereby authorized to to, collect and receipt for any such insurance proceeds. Notwithstanding anything in the preceding sentence to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Leasecontrary, then and in Beneficiary agrees that event, the applicable Issuer may it will allow Grantor to settle and adjust any claim without the consent of the Property Manager and agree with claims under the insurance company or companies on policies which are in an amount less than $150,000, per incident of loss, up to an aggregate amount of no greater than $300,000. The expenses incurred by Beneficiary in the amount to adjustment and collection of insurance proceeds shall be paid on included in the loss Obligations, and shall immediately deposit be reimbursed to Beneficiary upon demand or may be deducted by Beneficiary from said insurance proceeds prior to another application thereof. Interest on such amounts amount shall accrue at the Default Rate, beginning ten (10) days after Grantor receives notice of a request for payment of such amount from Beneficiary, until such amount, plus interest, is paid in full.
(c) Beneficiary shall permit Grantor to apply the proceeds of insurance policies received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months any casualty to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant pay for the cost of restoring, repairing, replacing or rebuilding the Property loss or Improvements in connection with a Hybrid Lease or part thereof subject damage to the Insured CasualtyTrust Property resulting from the casualty ("RESTORATION") if: (i) there is no Event of Default hereunder at the time of such application; (ii) restoration can, in the reasonable judgment of Beneficiary, be completed prior to the maturity of the Obligations; and (iii) restoration can, in the reasonable judgment of Beneficiary, be effected within two (2) years after the date of such casualty and in such a manner set forth belowso that the Trust Property will be of at least equal or greater value to the value than the Trust Property prior to such casualty. Otherwise, providedBeneficiary may elect in its sole discretion to apply such proceeds either (x) towards payment of the Obligations, notwithstanding the Indenture Trustee makes fact that the amounts received in connection with such an Insured Casualty available Obligations, or a portion thereof, may not then be due and payable, or (y) to pay for the samecost of Restoration. In all events, disbursement of insurance proceeds by Beneficiary (or at Beneficiary's election by a disbursing or escrow agent who shall be selected by Beneficiary and whose fees shall be paid by Grantor), to pay the cost of restoration shall require (i) evidence reasonably satisfactory to Beneficiary of the estimated costs of Restoration, (ii) funds (or assurances reasonably satisfactory to Beneficiary that such Issuer funds are available) sufficient in addition to the proceeds of insurance to complete and fully pay for Restoration; and (iii) such architect's certificates, waivers of lien, contractor's sworn statements, title insurance endorsements, plats of surveys and such other evidences of cost, payment and performance as Beneficiary may reasonably require and approve. Except to the extent Beneficiary fails to turn over insurance proceeds, if any, received by Beneficiary hereunder with respect to such casualty to Grantor, Grantor hereby covenants to restore, repair, replace or rebuild the Improvements, to be of at least equal value, and agrees of substantially the same character as prior to commence such loss or damage, all to be effected in accordance with plans, specifications and diligently prosecuteprocedures to be first submitted to and reasonably approved by Beneficiary, or cause the applicable Tenant to commence and diligently prosecute, Grantor shall pay all costs of such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Samples: Deed of Trust, Assignment of Leases and Rents, Security Agreement (Discovery Zone Inc)
Casualty. (a) If any an Individual Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an a “Insured Casualty”), the applicable Issuer Borrower shall give prompt notice thereof to the Indenture Trustee and the Property ManagerLender. Following the occurrence of an Insured a Casualty, the applicable Issuer Borrower, regardless of whether insurance proceeds are available, shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same affected Individual Property in accordance with Legal Requirements to be of at least equal value and of substantially the same character as prior to such damage or destruction. Lender may, all to be effected in accordance with applicable law; provided that if the Property Manager but shall not direct the Indenture Trustee be obligated to make proof of loss if not made promptly by Borrower. In addition, Lender may participate in any amounts received settlement discussions with any insurance companies (and shall approve any final settlement) (i) if an Event of Default is continuing or (ii) with respect to any Casualty in connection with such Insured Casualty available to reimburse which the applicable Issuer for Net Proceeds or the costs of such restorationcompleting the Restoration are equal to or greater than, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer respect to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policiesaffected Individual Property, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five three percent (53%) of the Fair Market Value of Allocated Loan Amount for the applicable Property or Improvements affected Individual Property, and Borrower shall deliver to Lender all instruments required by Lender to permit such participation. Except as set forth in the foregoing sentence, any Insurance Proceeds in connection with a Hybrid Lease, the applicable Issuer may any Casualty (whether or not Lender elects to settle and adjust any the claim without the consent of the Property Manager or Borrower settles such claim) shall be due and agree with the insurance company or companies on the amount payable solely to be paid upon the loss. In such case, such Issuer is hereby authorized to collect Lender and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, held by Lender in accordance with the terms of the Indenture and this Agreement.
(iii) . In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 Borrower or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds party other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or Lender is a payee on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as any check representing Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any Casualty, Borrower shall immediately endorse, and cause all such Propertythird parties to endorse, such check payable to the related proceeds shall be applied order of Lender. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to endorse any such check payable to the order of Lender. Borrower hereby releases Lender from any and all liability with respect to the settlement and adjustment by Lender of any claims in accordance with respect of any Casualty, except to the related Loan Documentsextent such liability arises as a result of the gross negligence or willful misconduct of Lender.
Appears in 1 contract
Samples: Loan Agreement (Clipper Realty Inc.)
Casualty. After obtaining knowledge of the occurrence of any damage, destruction or other casualty to the Property or any part thereof, whether or not covered by insurance, Borrower must immediately notify Administrative Agent in writing. In the event of such casualty, all proceeds of insurance (acollectively, the “Insurance Proceeds”) must be payable to Administrative Agent and no other party, and Borrower hereby authorizes and directs any affected insurance company to make payment of such Insurance Proceeds directly to Administrative Agent and no other party. If Borrower receives any Insurance Proceeds, Borrower must pay over such Insurance Proceeds to Administrative Agent within 2 Business Days. Administrative Agent is hereby authorized and empowered by Borrower to settle, adjust or compromise any and all claims for loss, damage or destruction under any policy or policies of insurance. Notwithstanding the above, provided that (i) such proceeds do not exceed $1,000,000.00 for any Property or Improvements (as defined in connection with a Hybrid Lease the Loan Agreement), (ii) no Event of Default exists, and (iii) the casualty does not materially impair the value of the Project, Borrower may retain such proceeds (which shall be materially damaged applied to the restoration of the Improvements to the extent required to repair a casualty). In the event of a foreclosure of this Security Instrument, or destroyed, other transfer of title to the Property in extinguishment in whole or in partpart of the Obligations, by fire all right, title and interest of Borrower in and to any Insurance Proceeds will vest in the purchaser at such foreclosure or in Administrative Agent, for the benefit of Administrative Agent and the Lenders or other casualty (an “Insured Casualty”), the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected transferee in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed such other transfer of title. Nothing herein will be deemed to excuse Borrower from repairing or maintaining the greater of (a) $100,000.00 Property as provided in this Security Instrument or (b) five percent (5%) restoring all damage or destruction to the Property, regardless of the Fair Market Value availability or sufficiency of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid LeaseInsurance Proceeds, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination application or release by Administrative Agent of any Leases due to such Insured Casualty) and Insurance Proceeds will not materially less useful than the same was prior to the Insured Casualtycure or waive any Default, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement or notice of Default or Event of Default or invalidate any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager action taken by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect Administrative Agent pursuant to any such Property, the related proceeds shall be applied in accordance with the related Loan Documentsnotice.
Appears in 1 contract
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an a “Insured Casualty”), the applicable Issuer Borrower that owns such Property shall give prompt written notice thereof to the Indenture Trustee and the Property ManagerLender. Following the occurrence of an Insured a Casualty, the applicable Issuer Borrower that owns the affected Property, regardless of whether Insurance Proceeds are available, shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in law (a safe and secure condition“Restoration”). The expenses incurred by the Property Manager Lender in the adjustment and collection of any amounts received in connection with an Insured Casualty Insurance Proceeds shall become part of the Obligations, shall be deemed a Property Protection Advance and be secured hereby by the Loan Documents and shall be reimbursed by Borrowers to Lender upon demand. Notwithstanding any Casualty, Borrowers shall continue to pay the applicable Issuer Obligations in the time and manner set forth in the Note and in this Agreement. Upon the occurrence of any Casualty, the Borrower that owns the affected Property shall (subject to the Property Manager pursuant right of Lender to elect to do so as set forth in Section 5.2(b)), promptly file a proof of loss with the terms of the Indenturerespective insurance company or companies insuring such Casualty.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured a Casualty that does not exceed the greater to any Property, so long as no Event of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid LeaseDefault has occurred, the applicable Issuer Borrower that owns such Property may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In loss (the “Insurance Proceeds”); provided that such caseadjustment is carried out in a competent and timely manner, such Issuer is hereby authorized and provided further that in the case of a Casualty where the damage to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of applicable Property equals or exceeds the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater lesser of (ax) $100,000.00 or 150,000.00 and (by) five ten percent (510%) of the Fair Market Value of Allocated Loan Amount for such Property (a “Significant Casualty”), any such settlement shall have been approved by Lender, which approval shall not be unreasonably withheld or delayed. Pool 1 In the event the applicable Properties Borrower fails to promptly file a proof of loss with respect to any Casualty or Improvements in connection with a Hybrid Lease, then fails to promptly and in that event, the applicable Issuer may diligently proceed to settle and adjust any claims with respect thereto, or if an Event of Default has occurred, then notwithstanding anything set forth herein to the contrary, Lender shall, at the sole cost and expense of Borrowers, have the right to file such proof of loss, settle and adjust such claim without the consent of the Property Manager any Borrower and agree with the such insurance company or companies on the amount of the Insurance Proceeds in the place and stead of Borrowers and without the consent of Borrowers, and each Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to do so. In the case of a Casualty that is not a Significant Casualty, provided that (i) no Event of Default shall have occurred, (ii) the Restoration can be paid on completed prior to the loss earlier to occur of (A) the date which is twelve (12) months following such Casualty and shall immediately deposit (B) the date which is twelve (12) months prior to the Stated Maturity Date, and (iii) such amounts received Restoration is permitted pursuant to the terms of the applicable Franchise Agreement, then the applicable Borrower is hereby authorized to collect and receipt for any Insurance Proceeds. Any Insurance Proceeds in connection with an Insured a Significant Casualty into (whether or not Lender elects to settle and adjust the Casualty claim or any Borrower settles such claim) shall be due and Condemnation Sub-Account, payable solely to Lender and held by Lender in accordance with the terms of the Indenture and this Agreement.
(iii) . In the event of an Insured Casualty where the loss any Borrower or any party other than Lender is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection a payee on any check representing Insurance Proceeds with a Hybrid Leaserespect to any Casualty, such Borrower shall immediately endorse, and ifcause all such third parties to endorse, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior check payable to the Insured Casualtyorder of Lender. Each Borrower hereby irrevocably appoints Lender as its attorney-in-fact, thencoupled with an interest, if no Event to endorse any such check payable to the order of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable Lender. The expenses incurred by Lender in the Property Manager) adjustment and collection of Insurance Proceeds shall become part of the Obligations, shall be collected secured by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, Loan Documents and shall be distributed reimbursed by Borrowers to Lender upon demand. Each Borrower hereby releases Lender from any and all liability with respect to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost settlement and adjustment by Lender of restoring, repairing, replacing or rebuilding the Property or Improvements any claims in connection with a Hybrid Lease or part thereof subject to the Insured respect of any Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to In the contrary (including in Section 3.20 below), in the case event of loss or damages covered by any of the Property Insurance Policies Policies, the following provisions shall apply with respect to application of Insurance Proceeds:
(i) In the event of a Significant Casualty to any Property securing where (A) in the reasonable judgment of Lender, the Restoration of such Property can be completed prior to the earlier to occur of (1) the date which is twelve (12) months following such Casualty and (2) the date which is twelve (12) months prior to the Stated Maturity Date, (B) such Restoration is permitted pursuant to the terms of the applicable Franchise Agreement, and (C) in the reasonable judgment of Lender, after completion of such Restoration, such Property will have a Mortgage value at least equal to the value immediately prior to such Casualty and the Properties, together, will adequately secure the Outstanding Principal Balance, then, if no Event of Default shall have occurred, the Net Proceeds shall be applied to reimburse the Borrower that owns the affected Property for the cost of the Restoration in the manner set forth below. Borrowers hereby covenant and agree to commence and diligently to prosecute the Restoration; provided always, that Borrowers shall pay all costs of such Restoration in excess of the Net Proceeds made available pursuant to the terms hereof (and if required by Lender, Borrowers shall deposit such excess amount with Lender in advance). Pool 1
(ii) Except as provided in Section 5.2(c)(i) above, the Insurance Proceeds collected upon any Casualty shall, at the option of Lender in its sole discretion, be applied to the payment of the Obligations or applied to reimburse the applicable Borrower for the cost of the Restoration of the damaged Property in the manner set forth below. Throughout the term of the Loan or any Condemnation if an Event of Default has occurred and is continuing, then Borrowers shall pay to Lender, with respect to any payment of the Obligations pursuant to this Section 5.2(c)(ii), an additional amount equal to the Yield Maintenance Premium; provided, however, that if an Event of Default is not continuing, then the Yield Maintenance Premium shall not be payable. Any such Propertyapplication to the Debt shall (A) be applied to those payments of principal and interest last due under this Agreement but shall not postpone any payments otherwise required pursuant hereunder other than such last due payments and (B) not cause or result in the Monthly Debt Service Payment Amount being re-cast based upon the reduction of the Outstanding Principal Balance and the number of months remaining until the Maturity Date.
(iii) In the event any Borrower is entitled to reimbursement out of the Net Proceeds held by Lender, such Insurance Proceeds shall be disbursed from time to time by Lender so long as the following conditions have been satisfied:
(A) no Event of Default shall have occurred and be continuing;
(B) the Operating Lease relating to the damaged Property shall remain in full force and effect during and after the completion of the Restoration without abatement of rent beyond the time required for Restoration, notwithstanding the occurrence of such Casualty;
(C) such Restoration is permitted pursuant to the terms of the applicable Franchise Agreement;
(D) the Borrower that owns the affected Property shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after such Casualty occurs) and shall diligently pursue the same to satisfactory completion;
(E) Lender shall be satisfied that any operating deficits and all payments of principal and interest under the Note will be paid during the period required for Restoration from (1) the Net Proceeds, or (2) other funds of Borrowers;
(F) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) the date that is twelve (12) months prior to the Stated Maturity Date, (2) the earliest date required for such completion under the terms of the related proceeds Operating Lease or the related Franchise Agreement, (3) such time as may be required under applicable Legal Requirements in order to repair and restore the affected Property to the condition Pool 1 it was in immediately prior to such Casualty, or (4) six (6) months prior to the expiration of the insurance coverage referred to in Section 5.1.1(a)(iii);
(G) the affected Property and the use thereof after the Restoration will be in compliance in all material respects with and permitted under all applicable Legal Requirements;
(H) the Restoration shall be applied done and completed by such Borrower in accordance an expeditious and diligent fashion and in compliance in all material respects with all applicable Legal Requirements; and
(I) such Casualty does not result in any loss of access to the affected Property or the related Loan DocumentsImprovements which in Lender’s reasonable determination would adversely affect the operation, use or value of such Property or the liquidity of the Loan.
Appears in 1 contract
Casualty. (a) Except as otherwise provided in this Agreement, Seller assumes all risks for damage to or injury occurring to the Property by fire, storm, accident, or any other casualty or cause until the Closing has been consummated. If before the Closing, the Property, or any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyedpart thereof, in whole or in part, by suffers any damage from fire or other casualty casualty, Seller will notify Purchaser of such fact (an the “Insured CasualtySeller’s Casualty Notice”), the applicable Issuer and, if such damage is “Material” Purchaser may terminate this Agreement by notice to Seller given within ten (10) days following Seller’s Casualty Notice to Purchaser, in which case Purchaser shall give prompt notice thereof be entitled to the Indenture Trustee return of the Deposit, and thereafter neither party shall have any rights or obligations under this Agreement, other than the Surviving Obligations. For purposes of this Section 6.2, damage shall be considered “Material” if it (A) in Seller’s reasonable estimate, will require in excess of $900,000 to repair and restore and Seller, at its sole option, does not elect to repair and restore the same prior to Closing, (B) causes access to or parking on the Property Managerto be adversely affected, (C) results in the Property violating any laws or failing to comply with zoning regulations or any covenants, conditions or restrictions affecting the Property, or (D) entitles any tenant to terminate their Lease or xxxxx rent for more than sixty (60) days. Following If neither party terminates this Agreement, it shall remain in full force and effect, Purchaser agrees that it will consummate the occurrence Closing and accept the assignment of an Insured CasualtySeller’s right, title and interest in and to the applicable Issuer shall promptly net proceeds (or shall promptly cause rights under the Tenant policy) of any insurance covering such damage, including any rent loss insurance for the period after the Closing (less an amount equal to any expenses and costs incurred by Seller to collect or Borrower to) proceed adjust such insurance or to restoresecure the Improvements or initiate repairs or restoration of the Property, repair, replace and any portion of such proceeds paid or rebuild the same to be paid on account of at least equal value and the loss of substantially rents or other income from the same character as Property for the period prior to such damage or destructionand including the Closing Date shall be payable to Seller (collectively, all “Seller Expenses”), to be effected in accordance with applicable law; provided that if the Property Manager shall not direct extent the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs amount of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that net proceeds does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the Purchase Price, plus an amount equal to Seller’s deductible under its insurance policy applicable Property or Improvements in connection with a Hybrid Leaseto such casualty, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on plus the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the uninsured loss and there shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, be no other reduction in the reasonable judgment Purchase Price or obligation of the Property Manager the Property can be restored within twenty-four (24) months Seller to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was complete restoration. If prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuingClosing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecuteProperty, or cause any part thereof, suffers any damage which is not Material, Purchaser agrees that it will consummate the applicable Tenant to commence Closing and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or accept the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess assignment of the net proceeds made available pursuant (or rights under the policy) of any insurance covering such damage, including any rent loss insurance for the period after the Closing (less Seller Expenses), to the terms hereof.
(iv) Subject extent the amount of such net proceeds does not exceed the Purchase Price, plus an amount equal to clauses (i)-(iii) in this Section 3.19(b)Seller’s deductible under its insurance policy applicable to such casualty, an Issuer may elect for proceeds from an Insured Casualty or Condemnation to plus the amount of any uninsured loss and there shall be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, no other reduction in the manner set forth below Purchase Price or (C) provided obligation of Seller to complete restoration. Seller agrees that such amounts are greater than or equal to from and after the Collateral Value of date hereof and until the related Closing Seller shall carry all insurance coverage which it presently carries on the Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement . Seller’s existing liability and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory property insurance pertaining to the Property Manager that such funds are available, sufficient in addition to shall be canceled as of the proceeds to complete the proposed restoration, repair, replacement and rebuildingClosing Date, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds Seller shall be disbursed prior entitled to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) abovereceive any premium refund due thereon.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust, Inc.)
Casualty. (a) If any Individual Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an a “Insured Casualty”), the applicable Issuer Borrower shall give prompt notice thereof to the Indenture Trustee and the Property ManagerLender. Following the occurrence of an Insured a Casualty, the applicable Issuer subject to Borrower’s rights under Section 2.4.4(c) and Section 2.5.3 hereof, Borrower, regardless of whether insurance proceeds are available, shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same such Individual Property (or cause Owner to restore, repair, replace or rebuild such Individual Property) in accordance with Legal Requirements to be of at least equal value and of substantially the same character as prior to such damage or destructiondestruction as soon as reasonably practicable (but in no event later than one hundred twenty (120) days after such Casualty. Lender may, but shall not be obligated to make proof of loss if not made promptly by Borrower or Owner. In addition, Lender may, subject to the rights of Mortgage Lender, participate in any settlement discussions with any insurance companies (and shall approve any final settlement) (i) if an Event of Default is continuing or (ii) with respect to any Casualty in which the Net Proceeds or the costs of completing the Restoration are equal to or greater than the Alteration Threshold with respect to the affected Individual Property, and Borrower shall deliver (or cause Owner to deliver) to Lender all instruments required by Lender to be effected permit such participation. Provided no Event of Default is continuing, and subject to the rights of Mortgage Lender, in accordance with applicable lawthe event of a Casualty where Net Proceeds or the costs of completing the Restoration are $250,000 or less, Borrower , notwithstanding Section 5.4. may directly obtain and apply the Net Proceeds; provided that if such Net Proceeds must be used towards the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty Restoration in accordance with the terms and provisions of hereof. Except as set forth in the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements foregoing sentence, any Insurance Proceeds in connection with a Hybrid Lease, then and in that event, the applicable Issuer may any Casualty (whether or not Lender elects to settle and adjust any the claim without the consent of the Property Manager or Borrower causes Owner to settle such claim) shall be due and agree with the insurance company or companies on the amount payable solely to be paid on the loss Mortgage Lender and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, held by Mortgage Lender in accordance with the terms of the Indenture and this Mortgage Loan Agreement.
(iii) . In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 Borrower, Owner or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds party other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or Lender is a payee on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as any check representing Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any Casualty, Borrower shall immediately endorse (or cause Owner to endorse), and cause all such Propertythird parties to endorse, such check payable to the related proceeds shall be applied in accordance with order of Lender, subject to the related rights of Mortgage Lender under the Mortgage Loan Documents. Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to endorse any such check payable to the order of Lender, subject to the rights of Mortgage Lender. Borrower hereby releases Lender from any and all liability with respect to the settlement and adjustment by Lender of any claims in respect of any Casualty.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Casualty. (a) If the Project or any Property portion thereof is damaged or Improvements destroyed by fire or any other casualty or occurrence, whether or not such damage or destruction is insured under the insurance coverage required to be maintained by Tenant under this Lease, Tenant, at Tenant’s sole expense, shall cause the Project (or portion thereof) to be fully repaired and restored to the condition existing immediately prior to such fire, casualty or occurrence; provided, that, if such casualty or occurrence resulted in damage or destruction of a significant portion of the Theme Park, Tenant shall only be required to repair and restore the Project (or portion thereof) if the Theme Park Owner is required to repair and restore the damage or destruction to such portion of the Theme Park. Subject to the occurrence of a Force Majeure Event, Tenant shall commence the restoration within (i) one hundred twenty (120) days after receipt of the insurance proceeds paid following a fire or other insured casualty (the “NET INSURANCE PROCEEDS”) arising from the damage or destruction which caused the need for such restoration or (ii) if the fire or other casualty was not insured, one hundred five (105) days after the occurrence of the fire or casualty and in each case Tenant shall at such time diligently pursue the completion of such restoration.
(b) Except as may otherwise be required by any mortgage encumbering the Premises or any portion thereof, all Net Insurance Proceeds shall, if in an amount equal to $5,500,000, adjusted for inflation, or less per occurrence, be paid to Tenant and applied as provided herein. If greater than $5,500,000, adjusted for inflation, then all Net Insurance Proceeds shall be deposited with the Permitted Leasehold Mortgagee or, if none, with another Lending Institution pursuant to a mutually acceptable trust agreement. Provided Tenant is conducting the restoration in accordance with this Lease and the Permitted Leasehold Mortgage or trust agreement, the Permitted Leasehold Mortgagee or Lending Institution shall disburse the Net Insurance Proceeds to Tenant from time to time upon receipt of a request from Tenant to cover amounts due to contractors, subcontractors, materialmen, engineers, architects or other Persons who have rendered services or furnished materials in connection with a Hybrid the restoration. The Net Insurance Proceeds shall be held in an interest-bearing account, and any interest so earned shall be deemed to be part of the Net Insurance Proceeds. Any Net Insurance Proceeds which are in excess of the costs of such restoration shall be promptly paid to Tenant and shall be Tenant’s sole and exclusive property.
(c) If, in accordance with this Section 11.1, Tenant shall undertake promptly to restore the Project (or such portion thereof) that has been destroyed or damaged, then from the date of such casualty and during the diligent restoration by the Tenant of the Project, until such time as the Project shall be fully restored, this Lease shall remain in good standing and shall not be materially damaged in default and there shall be no abatement during such restoration period of any fees, charges or destroyedamounts payable by Tenant to Landlord hereunder. Nothing contained herein shall relieve Tenant of its obligations under this Article XI if the destruction or damage is not covered, either in whole or in part, by insurance or if the Net Insurance Proceeds shall be insufficient to pay the entire cost of the repair, restoration or replacement. Tenant’s liability under this Article XI shall survive any termination of this Lease pursuant to Section 11.1(d).
(d) Notwithstanding the foregoing, if a Property is totally destroyed (as defined in Section 11.1(e)) during the last three (3) years of the Term and insurance proceeds are available (“SECTION 11.1(D) PROCEEDS”) to fully cover the cost of repairing, restoring and/or replacing such Property (or, to the extent such Section 11.1 (d) Proceeds are inadequate for such purposes, funds sufficient therefor are provided by Tenant), then, in such event, Tenant may elect to terminate this Lease effective forty-five (45) days after Tenant shall have delivered to Landlord written notice of termination given no later than one hundred eighty (180) days following the destruction of such Property; provided, that Tenant’s right to so terminate shall be conditioned upon Tenant’s compliance with all of the following conditions:
(i) Tenant shall give Landlord written notice of such damage or destruction promptly, but not later than ninety (90) days after the event, detailing the facts that qualify the casualty under this Section 11.1(d);
(ii) No Event of Default of Tenant shall exist or be continuing under any provision of this Lease; and
(iii) Prior to the effectiveness of any such termination, Tenant shall pay, or cause to be paid, to Landlord an amount equal to the cost, as reasonably estimated by an architect or engineer mutually acceptable to Landlord and Tenant, of restoring such Property to its condition existing immediately prior to such fire or other casualty casualty, which amount shall be due whether or not Landlord elects to demolish, reconstruct, or make any other changes, alterations, and/or improvements whatsoever in or to such Property.
(an “Insured Casualty”)e) For purposes of this Lease, the applicable Issuer term “totally destroyed” shall give prompt notice thereof mean damage or destruction to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualtya Property, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed cost of which to restore, repair, restore and/or replace or rebuild shall exceed seventy-five percent (75%) of the same then current full replacement cost of such Property, as reasonably determined by Landlord and Tenant.
(f) The Landlord (solely in its capacity as the owner of the Sites) shall reasonably cooperate with Tenant in obtaining the permits and approvals required to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received issued by Governmental Authorities in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restorationconstruction, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put repair and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection restoration of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager Property, Alterations or otherwise required pursuant to the terms of this Section 11.1 and any necessary utility access agreements, shall sign any application reasonably made by Tenant which is required in order to obtain such permits and approvals and utility access agreements and shall provide Tenant with any information and/or documentation not otherwise reasonably available to Tenant (if available to the Indenture.
Landlord) which is necessary to procure such permits and approvals and utility access agreements. Tenant shall reimburse the Landlord, within ten (b10) In case of loss days after the Landlord’s demand, for any reasonable out-of-pocket cost or damages to a Property not securing a Mortgage Loan or Improvements expense incurred by the Landlord in connection with a Hybrid Lease covered by any of Landlord’s assistance in obtaining the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle permits and adjust any claim without the consent of the Property Manager approvals and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Leaseutility access agreements.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Casualty. (a) If any Property Throughout the entire Term, Practice shall maintain “All Risk” or Improvements in connection with a Hybrid Lease “Fire and Extended Coverage” property insurance covering Practice’s trade fixtures and personal property, and the trade fixtures and personal property of all physicians that are located on or about the Premises, and all leasehold improvements to the Premises which Practice is required to maintain or repair. Such insurance shall be materially damaged carried at the replacement cost of the insured property, and shall provide protection against perils that are covered under standard insurance industry practices within the classification of “All Risk” or destroyed“Fire and Extended Coverage” property insurance, in whole including but not limited to, loss or in partdamage from fire, by fire lightning, windstorm, hail, explosion, riot, civil commotion, aircraft, vehicles, smoke, water damage, collapse, sprinkler leakage, vandalism, malicious mischief, terrorism, earthquake and flood. 3. Worker Compensation. If Practice has employees or other casualty (leased employees, worker compensation insurance.
b. All such insurance policies shall be maintained on an “Insured Casualty”), Occurrence,” not “Claims Made,” basis with financially responsible insurance companies that are acceptable to WellQuest and that are authorized to insure risks in the State of Arkansas. Such insurance shall be issued in the name of Practice or the applicable Issuer shall give prompt notice thereof to the Indenture Trustee physician, with WellQuest and the Property ManagerOwner named as additional insureds on all such policies. Following the occurrence of an Insured Casualty, the applicable Issuer Practice shall promptly (deliver to WellQuest a certificate or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
certificates (i) In listing the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) insurers and policy numbers, for all of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount required to be paid upon the loss. In such casemaintained under this Sublease, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In warranting that said insurance is in full force and effect and that such insurance and the event an Insured Casualty shall exceed policies evidencing the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree same comply with the insurance company or companies on the amount to be paid on the loss requirements of this Sublease; and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In containing an endorsement that the event insurer will not cancel, amend or fail to renew the policy without notifying WellQuest and Practice by certified or registered mail at least thirty (30) days in advance of an Insured Casualty where such cancellation or amendment. If Practice fails to procure any insurance required hereunder, or fails to maintain the loss is insurance in an aggregate amount more than force continuously during the greater of (a) $100,000.00 or (b) five percent (5%) of term, WellQuest has the Fair Market Value of option, but not the applicable Properties or Improvements in connection with a Hybrid Leaseobligation, to procure such insurance for Practice, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture Practice shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to immediately reimburse such Issuer or the subject Tenant WellQuest for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the insurance on written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approvedemand. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.24
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Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), damages the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (Premises or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any common areas of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) necessary for Tenant's use and occupancy of the Fair Market Value Premises and if such damage is not the result of the applicable Property negligence or Improvements in connection with a Hybrid Leasewillful misconduct of Tenant or Tenant's agents, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company officers, employees, contractors, licensees or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualtyinvitees, then, if no Event of Default under during the Indenture shall have occurred and be then continuing, period the amounts received in connection with Premises is rendered unusable by such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) damage. Tenant shall be collected entitled to a reduction in Base Rent in the proportion that the area of the Premises rendered unusable by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed such damage bears to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess area of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approvePremises. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained hereinin the immediately preceding sentence, if the Property or the Premises, or any Permitted part thereof, is damaged by tire or other casualty before the Commencement Date or during the term of this Lease shall obligate and (a) such fire or other casualty occurs during the Tenant thereunder last twelve (12) months of the term of this Lease, or (b) the insurance proceeds received by Landlord in respect of such damage are not adequate to repairpay the entire cost, restore or rebuild as reasonably estimated by Landlord, of the affected Property repair and restoration work to be performed by Lanxxxxx, xr (c) the repair and restoration work to be performed by Xxxxxxxd cannot, as reasonably estimated by Landlord, be completed within four (4) months after the occurrence of an Insured Casualtysuch tire or other casualty, then, in any such event. Landlord shall have the applicable Issuerright, by giving written notice to Tenant within sixty (60) days alter the occurrence of such fire or other casualty, to terminate this Lease as of the date of such notice, if Landlord does not exercise the right to terminate this Lease in accordance with this section, this Lease shall (subject to the terms of this section) remain in full force and effect and Landlord shall repair such damage and restore the Property and the Premises to substantially the same condition in which the Property and the Premises existed before the occurrence of such lire or other casualty. Landlord shall not be obligated to repair any damage to. or to make any replacement of. any movable furniture, equipment, trade fixtures or personal property in the Premises. Tenant shall, at the direction Tenant's sole cost and expense, repair and replace all such movable furniture, equipment, trade fixtures and personal property. A total destruction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted automatically terminate this Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any effective as of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any date of such Property, the related proceeds shall be applied in accordance with the related Loan Documentstotal destruction.
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Casualty. (a) If The Trustor will give the Beneficiary prompt notice of -------- damage to or destruction of any Improvements on the Property and in case of loss covered by policies of insurance, the Beneficiary is hereby authorized to make proof of loss if not made promptly by the Trustor or Improvements any lessee. Any expenses incurred by the Beneficiary in connection the collection of insurance proceeds, together with a Hybrid Lease interest thereof from date of any such expense at the per annum interest rate set forth in the Note shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), added to and become a part of the applicable Issuer shall give prompt notice thereof indebtedness secured hereby and all be reimbursed to the Indenture Trustee and the Property ManagerBeneficiary, together with accrued interest thereon, immediately upon demand. Following Upon the occurrence of an Insured Casualtydamage to or destruction of any Improvements, if Beneficiary shall so elect in its sole and unfettered discretion (and notwithstanding whether the applicable Issuer Beneficiary's security is impaired), Beneficiary shall promptly (or shall promptly cause make the Tenant or Borrower to) proceed to restore, net proceeds of insurance available for repair, replace restoration and/or reconstruction under the conditions and in the manner specified in the next following paragraph. If Beneficiary shall otherwise determine, then such insurance proceeds shall be applied by the Beneficiary upon or rebuild in reduction of the same indebtedness secured hereby then most remotely due. If the Beneficiary shall require that the Improvements be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the Improvements shall be to be a condition of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty destructions. Insurance proceeds made available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain rebuilding of the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by (provided no default exists in the Indenture Trustee, Note or this Deed of Trust or any other Loan Document at the written direction time of the Property Managereach such disbursement), upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement through a construction disbursement agent selected or approved ny Beneficiary. Plans and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay specifications for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred submitted to for approval by the Beneficiary prior to the Collection Account as Insurance Proceeds and be applied to commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence costs of an Insured Casualty, the applicable Issuerbuilding and restoration may, at the direction option of the Property ManagerBeneficiary, be applied either on account of the indebtedness secured hereby then most remotely to be paid or be paid to any person or persons entitled thereto. Application or release of proceeds under the provisions hereby shall deposit the not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. No interest shall be allowed on account of any such proceeds of an Insured Casualty or any other funds held in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any hands of the Property Insurance Policies with respect to a Property securing a Mortgage Loan Beneficiary or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documentsdisbursing party hereunder.
Appears in 1 contract
Samples: Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (Inco Homes Corp)
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer Grantor shall give Beneficiary prompt notice thereof of any loss or damage to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the IndentureTrust Property.
(b) In case of loss or damages damage to a the Trust Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policiesinsurance policies described in Section 10 above, Beneficiary (or, after entry of decree of foreclosure, the following provisions shall apply:
purchaser at the foreclosure sale or decree creditor, as the case may be) is hereby authorized at its option either (i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may to settle and adjust any claim under such insurance policies without the consent of the Property Manager Grantor or (ii) to allow Grantor to settle and agree adjust such claim (either jointly with the insurance company Beneficiary or companies on the amount to be paid upon the loss. In such caseby Grantor alone at Beneficiary's discretion); provided that in either case Beneficiary shall, such Issuer and is hereby authorized to to, collect and receipt for any such insurance proceeds. Notwithstanding anything in the preceding sentence to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Leasecontrary, then and in Beneficiary agrees that event, the applicable Issuer may it will allow Grantor to settle and adjust any claim without the consent of the Property Manager and agree with claims under the insurance company or companies on policies which are in an amount less than $150,000, per incident of loss, up to an aggregate amount of no greater than $300,000. The expenses incurred by Beneficiary in the amount to adjustment and collection of insurance proceeds shall be paid on included in the loss Obligations, and shall immediately deposit be reimbursed to Beneficiary upon demand or may be deducted by Beneficiary from said insurance proceeds prior to another application thereof. Interest on such amounts amount shall accrue at the Default Rate, beginning ten (10) days after Grantor receives notice of a request for payment of such amount from Beneficiary, until such amount, plus interest, is paid in full.
(c) Beneficiary shall permit Grantor to apply the proceeds of insurance policies received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months any casualty to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant pay for the cost of restoring, repairing, replacing or rebuilding the Property loss or Improvements in connection with a Hybrid Lease or part thereof subject damage to the Insured CasualtyTrust Property resulting from the casualty ("Restoration") if: (i) there is no Event of Default hereunder at the time of such application; (ii) restoration can, in the reasonable judgment of Beneficiary, be completed prior to the maturity of the Obligations; and (iii) restoration can, in the reasonable judgment of Beneficiary, be effected with two (2) years after the date of such casualty and in such a manner set forth belowso that the Trust Property will be of at least equal or greater value to the value than the Trust Property prior to such casualty. Otherwise, providedBeneficiary may elect in its sole discretion to apply such proceeds either (x) towards payment of the Obligations, notwithstanding the Indenture Trustee makes fact that the amounts received in connection with such an Insured Casualty available Obligations, or a portion thereof, may not then be due and payable, or (y) to pay for the samecost of Restoration. In all events, disbursement of insurance proceeds by Beneficiary (or at Beneficiary's election by a disbursing or escrow agent who shall be selected by Beneficiary and whose fees shall be paid by Grantor), to pay the cost of restoration shall require (i) evidence reasonably satisfactory to Beneficiary of the estimated costs of Restoration, (iii) funds (or assurances reasonably satisfactory to Beneficiary that such Issuer funds are available) sufficient in addition to the proceeds of insurance to complete and fully pay for Restoration; and (iii) such architect's certificates, waivers of lien, contractor's sworn statements, title insurance endorsements, plats of surveys and such other evidences of cost, payment and performance as Beneficiary may reasonably require and approve. Except to the extent Beneficiary fails to turn over insurance proceeds, if any, received by Beneficiary hereunder with respect to such casualty to Grantor, Grantor hereby covenants to restore, repair, replace or rebuild the Improvements, to be of at least equal value, and agrees of substantially the same character as prior to commence such loss or damage, all to be effected in accordance with plans, specifications and diligently prosecuteprocedures to be first submitted to and reasonably approved by Beneficiary, or cause the applicable Tenant to commence and diligently prosecute, Grantor shall pay all costs of such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Samples: Deed of Trust (Discovery Zone Inc)
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an a “Insured Casualty”), the applicable Issuer Borrower that owns such Property shall give prompt written notice thereof to the Indenture Trustee and the Property ManagerLender. Following the occurrence of an Insured a Casualty, the applicable Issuer Borrower that owns the affected Property, regardless of whether Insurance Proceeds are available, shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in law (a safe and secure condition“Restoration”). The expenses incurred by the Property Manager Lender in the adjustment and collection of any amounts received in connection with an Insured Casualty Insurance Proceeds shall become part of the Obligations, shall be deemed a Property Protection Advance and be secured hereby by the Loan Documents and shall be reimbursed by Borrowers to Lender upon demand. Notwithstanding any Casualty, Borrowers shall continue to pay the applicable Issuer Obligations in the time and manner set forth in the Note and in this Agreement. Upon the occurrence of any Casualty, the Borrower that owns the affected Property shall (subject to the Property Manager pursuant right of Lender to elect to do so as set forth in Section 5.2(b)), promptly file a proof of loss with the terms of the Indenturerespective insurance company or companies insuring such Casualty.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured a Casualty that does not exceed the greater to any Property, so long as no Event of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid LeaseDefault has occurred, the applicable Issuer Borrower that owns such Property may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In loss (the “Insurance Proceeds”); provided that such caseadjustment is carried out in a competent and timely manner, such Issuer is hereby authorized and provided further that in the case of a Casualty where the damage to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of applicable Property equals or exceeds the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater lesser of (ax) $100,000.00 or 150,000.00 and (by) five ten percent (510%) of the Fair Market Value of Allocated Loan Amount for such Property (a “Significant Casualty”), any such settlement shall have been approved by Lender, which approval shall not be unreasonably withheld or delayed. In the event the applicable Properties Borrower fails to promptly file a proof of loss with respect to any Pool 2 Casualty or Improvements in connection with a Hybrid Lease, then fails to promptly and in that event, the applicable Issuer may diligently proceed to settle and adjust any claims with respect thereto, or if an Event of Default has occurred, then notwithstanding anything set forth herein to the contrary, Lender shall, at the sole cost and expense of Borrowers, have the right to file such proof of loss, settle and adjust such claim without the consent of the Property Manager any Borrower and agree with the such insurance company or companies on the amount of the Insurance Proceeds in the place and stead of Borrowers and without the consent of Borrowers, and each Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to do so. In the case of a Casualty that is not a Significant Casualty, provided that (i) no Event of Default shall have occurred, (ii) the Restoration can be paid on completed prior to the loss earlier to occur of (A) the date which is twelve (12) months following such Casualty and shall immediately deposit (B) the date which is twelve (12) months prior to the Stated Maturity Date, and (iii) such amounts received Restoration is permitted pursuant to the terms of the applicable Franchise Agreement, then the applicable Borrower is hereby authorized to collect and receipt for any Insurance Proceeds. Any Insurance Proceeds in connection with an Insured a Significant Casualty into (whether or not Lender elects to settle and adjust the Casualty claim or any Borrower settles such claim) shall be due and Condemnation Sub-Account, payable solely to Lender and held by Lender in accordance with the terms of the Indenture and this Agreement.
(iii) . In the event of an Insured Casualty where the loss any Borrower or any party other than Lender is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection a payee on any check representing Insurance Proceeds with a Hybrid Leaserespect to any Casualty, such Borrower shall immediately endorse, and ifcause all such third parties to endorse, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior check payable to the Insured Casualtyorder of Lender. Each Borrower hereby irrevocably appoints Lender as its attorney-in-fact, thencoupled with an interest, if no Event to endorse any such check payable to the order of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable Lender. The expenses incurred by Lender in the Property Manager) adjustment and collection of Insurance Proceeds shall become part of the Obligations, shall be collected secured by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, Loan Documents and shall be distributed reimbursed by Borrowers to Lender upon demand. Each Borrower hereby releases Lender from any and all liability with respect to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost settlement and adjustment by Lender of restoring, repairing, replacing or rebuilding the Property or Improvements any claims in connection with a Hybrid Lease or part thereof subject to the Insured respect of any Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to In the contrary (including in Section 3.20 below), in the case event of loss or damages covered by any of the Property Insurance Policies Policies, the following provisions shall apply with respect to application of Insurance Proceeds:
(i) In the event of a Significant Casualty to any Property securing where (A) in the reasonable judgment of Lender, the Restoration of such Property can be completed prior to the earlier to occur of (1) the date which is twelve (12) months following such Casualty and (2) the date which is twelve (12) months prior to the Stated Maturity Date, (B) such Restoration is permitted pursuant to the terms of the applicable Franchise Agreement, and (C) in the reasonable judgment of Lender, after completion of such Restoration, such Property will have a Mortgage value at least equal to the value immediately prior to such Casualty and the Properties, together, will adequately secure the Outstanding Principal Balance, then, if no Event of Default shall have occurred, the Net Proceeds shall be applied to reimburse the Borrower that owns the affected Property for the cost of the Restoration in the manner set forth below. Borrowers hereby covenant and agree to commence and diligently to prosecute the Restoration; provided always, that Borrowers shall pay all costs of such Restoration in excess of the Net Proceeds made available pursuant to the terms hereof (and if required by Lender, Borrowers shall deposit such excess amount with Lender in advance).
(ii) Except as provided in Section 5.2(c)(i) above, the Insurance Proceeds collected upon any Casualty shall, at the option of Lender in its sole discretion, be applied to the payment of the Obligations or applied to reimburse the applicable Borrower for the cost of the Restoration of the damaged Property in the manner set forth below. Throughout the term of the Loan or any Condemnation if an Event of Default has occurred and is continuing, then Borrowers shall pay to Lender, with respect to any payment of the Obligations pursuant to this Section 5.2(c)(ii), an additional amount equal to the Yield Maintenance Premium; provided, however, that if an Event of Default is not continuing, then the Yield Maintenance Premium shall not be payable. Any such Propertyapplication to the Debt shall (A) be applied to those payments of principal and interest last due under this Agreement but shall not postpone any payments otherwise required pursuant hereunder other than such last due payments and (B) not cause or result in the Monthly Debt Service Payment Amount being re-cast based upon the reduction of the Outstanding Principal Balance and the number of months remaining until the Maturity Date.
(iii) In the event any Borrower is entitled to reimbursement out of the Net Proceeds held by Lender, such Insurance Proceeds shall be disbursed from time to time by Lender so long as the following conditions have been satisfied:
(A) no Event of Default shall have occurred and be continuing;
(B) the Operating Lease relating to the damaged Property shall remain in full force and effect during and after the completion of the Restoration without abatement of rent beyond the time required for Restoration, notwithstanding the occurrence of such Casualty;
(C) such Restoration is permitted pursuant to the terms of the applicable Franchise Agreement;
(D) the Borrower that owns the affected Property shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after such Casualty occurs) and shall diligently pursue the same to satisfactory completion;
(E) Lender shall be satisfied that any operating deficits and all payments of principal and interest under the Note will be paid during the period required for Restoration from (1) the Net Proceeds, or (2) other funds of Borrowers;
(F) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) the date that is twelve (12) months prior to the Stated Maturity Date, (2) the earliest date required for such completion under the terms of the related proceeds Operating Lease or the related Franchise Agreement, (3) such time as may be required under applicable Legal Requirements in order to repair and restore the affected Property to the condition Pool 2 it was in immediately prior to such Casualty, or (4) six (6) months prior to the expiration of the insurance coverage referred to in Section 5.1.1(a)(iii);
(G) the affected Property and the use thereof after the Restoration will be in compliance in all material respects with and permitted under all applicable Legal Requirements;
(H) the Restoration shall be applied done and completed by such Borrower in accordance an expeditious and diligent fashion and in compliance in all material respects with all applicable Legal Requirements; and
(I) such Casualty does not result in any loss of access to the affected Property or the related Loan DocumentsImprovements which in Lender’s reasonable determination would adversely affect the operation, use or value of such Property or the liquidity of the Loan.
Appears in 1 contract
Casualty. (a) If the Facility or any Property or Improvements in connection with a Hybrid Lease shall be materially portion thereof is damaged or destroyeddestroyed during the term of this Agreement by fire, in whole other casualty, or in part, by fire or other casualty (an “Insured Casualty”)act of God, the applicable Issuer shall give prompt notice thereof to the Indenture Trustee Town shall, at its sole cost and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restoreexpense, repair, rebuild and replace or rebuild the same Facility to be of at least equal value and of substantially the same character or better conditions as prior to such damage or destruction, destruction unless the proceeds of property insurance carried under this Agreement are insufficient to pay all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for of the costs of repair and restoration. If the Town is required or elects to repair or rebuild the Facility, the Town shall undertake such restorationwork at the Town's sole expense within a reasonable time after the fire or other casualty, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by diligently proceed to complete the applicable Issuer to the Property Manager pursuant to the terms of the Indenturesame as expeditiously as possible.
(b) In case If only a part of loss the Facility shall be taken or damages to a Property not securing a Mortgage Loan condemned in any eminent domain, condemnation, compulsory acquisition or Improvements in connection with a Hybrid Lease covered like proceeding by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Leasecompetent authority, and if, in the reasonable judgment opinion of the Property Manager Town, the Property Facility can be altered, restored within twenty-four (24) months or repaired so as to an economic unit not materially less valuable (including an assessment make it a satisfactory golfing facility of the impact of the termination of any Leases due to such Insured Casualty) similar type and not materially less useful than the same was class as prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuingtaking or condemnation, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by Town shall so alter, restore and replace the Property Manager) shall be collected by Facility if the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) proceeds of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to condemnation will be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restorationsame, repairthe Town and the Manager agreeing to pledge so much of their separate awards, replacement or rebuilding in proportion to the amount awarded to each, as is necessary for such purposes. Such work shall be transferred commenced reasonably soon after such proceeds become available and shall be diligently pursued to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) abovecompletion.
(vic) Notwithstanding anything If at any time during the term hereof it becomes necessary, in the Town's reasonable opinion, to cease operation of the contrary contained hereinFacility (or any portion thereof) in order to protect the health, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore safety and welfare of patrons or rebuild the affected Property after the occurrence of an Insured Casualtygeneral public, the applicable Issuer, Manager shall at the direction of the Property Manager, Town close and cease operation of all or part of the Facility as designated by the Town. The Manager shall deposit reopen and commence operation when the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make Town deems that such proceeds available, subject only may be done without jeopardy to the conditions set forth in such Permitted Lease Facility patrons and the conditions set forth in the first sentence of subparagraph (iv) abovegeneral public.
(cd) Notwithstanding anything contained herein No fees shall be payable to the contrary (including in Manager under Section 3.20 below), in 25 hereof for any period during which the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan DocumentsFacility's 18-hole golf course is inoperable.
Appears in 1 contract
Samples: Golf Facilities Management Agreement (Senior Tour Players Development Inc)
Casualty. (a) If any the Individual Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an a “Insured Casualty”), the applicable Issuer Borrower shall give prompt notice thereof of such damage to Lender and shall promptly commence and diligently prosecute the completion of the Restoration of the Individual Property as nearly as possible to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualtycondition (or, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed subject to restoreLender’s reasonable consent, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as condition) the Individual Property was in immediately prior to such damage or destructionCasualty (so long as applicable zoning laws in effect at the time permit such rebuilding), all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps material alterations as may be reasonably required to put approved by Lender and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty otherwise in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant Section 6.4. Borrower shall pay all costs of such Restoration whether or not such costs are covered by insurance. Lender may, but shall not be obligated to make proof of loss if not made promptly by Borrower. In addition, Lender may participate in any settlement discussions with any insurance companies with respect to any Casualty in which the Net Proceeds or the costs of completing the Restoration are equal to or greater than One Million Dollars ($1,000,000) and if Borrower shall deliver to Lender all instruments required by the Property Manager, Lender to permit such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approveparticipation. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained hereinin this Section 6.2, if any Permitted Lease shall obligate in the Tenant thereunder to repair, restore event of a Casualty which destroys or rebuild otherwise renders unfit for use and occupancy fifty percent (50%) or more of the floor area of the Improvements on the affected Individual Property, Borrower may obtain a release of the Individual Property after from the occurrence lien of an Insured Casualty, the applicable IssuerMortgage and related Loan Documents by paying to Lender the Adjusted Release Amount for such Individual Property (even if such prepayment occurs prior to the Lockout Release Date), at in which case no Prepayment Premium shall be due, and upon the direction effective date of such release, Lender shall pay over to Borrower such Net Proceeds in respect of such Casualty. Except as otherwise set forth in the immediately preceding sentence, such release of the affected Individual Property Manager, shall deposit be subject to the proceeds satisfaction of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to each of the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) aboveSection 2.5.1 hereof.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
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Casualty. (a) If the Premises or any Property or Improvements in connection with a Hybrid Lease shall be materially part thereof are damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”)casualty, the applicable Issuer Tenant shall give prompt notice thereof to Landlord. If the Indenture Trustee Premises or the Building are totally or partially damaged or destroyed by fire or other casualty, thereby rendering the Premises totally or partially inaccessible or unusable, Landlord shall diligently restore and repair the Premises and the Property ManagerBuilding to substantially the same condition they were in prior to such damage. Following Until the repair and restoration of the Premises is completed, Rent shall be abated for that part of the Premises that Tenant is unable to use and is not occupied while repairs are being made, based on the ratio that the amount of unusable rentable area bears to the total rentable area of the Premises. Landlord shall bear the costs and expenses of repairing and restoring the Premises and the Building, provided, however, that Landlord shall not be obligated to spend more than the net proceeds of insurance proceeds made available for such repair and restoration nor shall Landlord be obligated to repair or restore, or to pay for the repair or restoration of, any furnishings, equipment or personal property belonging to Tenant. It shall be Tenant’s sole responsibility to repair and restore all such items. Notwithstanding the foregoing, (a) if there is a destruction of the Building that exceeds [***] percent ([***]%) of the replacement value of the Building from any risk, whether or not the Premises are damaged or destroyed, or (b) if Landlord reasonably believes that the repairs and restoration cannot be completed despite reasonable efforts within [***] ([***]) days after the occurrence of an Insured Casualtysuch damage, or (c) if Landlord reasonably believes that there shall be less than [***] ([***]) year remaining in the applicable Issuer shall promptly Term (exclusive of any extension options) upon the substantial completion of such repairs and restoration, or shall promptly cause the Tenant (d) if any mortgagee or Borrower to) proceed to restore, repair, replace lender fails or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee refuses to make any amounts received in connection with sufficient insurance proceeds available for repairs and restoration, or (e) if zoning or other applicable laws or regulations do not permit such Insured Casualty available repairs and restoration, Landlord shall have the right, at its sole option, to reimburse terminate this Lease by giving written notice of termination to Tenant within [***] ([***]) days after the applicable Issuer for the costs occurrence of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure conditiondamage. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager If this Lease is terminated pursuant to the terms preceding sentence, all Rent payable hereunder shall be apportioned and paid to the date Tenant was unable to occupy and ceased operations in the Premises. Notwithstanding the foregoing, (a) if there is a destruction of the Indenture.
Building that exceeds [***] percent ([***]%) of the replacement value of the Building from any risk, and Tenant’s use of the Premises or the Common Areas are materially adversely impacted, or (b) In case if Landlord reasonably believes that the repairs and restoration cannot be completed despite reasonable efforts within [***] ([***]) days after the occurrence of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any such damage, and Tenant’s use of the Property Insurance PoliciesPremises or the Common Areas are materially adversely impacted, or (c) if Landlord reasonably believes that there shall be less than [***] remaining in the Term (exclusive of any extension options) upon the substantial completion of such repairs and restoration, and Tenant’s use of the Premises or the Common Areas are materially adversely impacted, or (d) if the Premises or Common Areas are damaged or destroyed and any mortgagee or lender fails or refuses to make sufficient insurance proceeds available for repairs and restoration, or (e) if zoning or other applicable laws or regulations do not permit such repairs and restoration, then Tenant shall have the right, at its sole option, to terminate this Lease by giving written notice of termination to Landlord within [***] ([***]) days after the occurrence of such damage. If this Lease is terminated pursuant to the preceding sentence, all Rent payable hereunder shall be apportioned and paid to the date Tenant was unable to occupy and ceased operations in the Premises. If neither party elects to terminate this Lease and Landlord commences to restore the Building but does not substantially complete the repair and restoration of the Building within [***] ([***]) days following provisions the date of casualty, then Tenant may terminate this Lease upon written notice to Landlord as of the end of such [***] ([***]) day period by providing written notice to Landlord, such termination to be effective [***] ([***]) days after notice from Tenant is received by Landlord, unless Landlord substantially completes the repairs within such [***] ([***]) day period upon which the Tenant’s termination shall apply:
(i) be vitiated and the Lease shall continue in full force and effect. In the event of an Insured Casualty that does not exceed any damage or destruction to the greater of (a) $100,000.00 Building or (b) five percent (5%) Premises, it shall be Tenant’s responsibility to secure the Premises and, upon notice from Landlord, to remove forthwith, at its sole cost and expense, property belonging to Tenant or its licensees from such portion of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related LeasePremises as Landlord shall request.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
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Casualty. (ai) If Borrower will promptly notify Lender of any Property damage to or Improvements in connection with a Hybrid Lease shall be materially damaged destruction of Improvements, whether or destroyednot the same is covered by insurance, in whole or in partand, by fire or other casualty (an “Insured Casualty”)if so covered, the applicable Issuer shall give prompt notice thereof will promptly make proof of loss relating thereto. Lender may make proof of loss to the Indenture Trustee and the Property ManagerImprovements if not made promptly by Borrower. Following the occurrence of an Insured CasualtyBorrower hereby authorizes Lender, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restoreat Lender's option, repair, replace or rebuild the same to be of at least equal value and of substantially named as the same character as prior loss-payee on any insurance policy, to such damage adjust or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager compromise in the adjustment and collection name of Borrower, any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies policy on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized Improvements and to collect and receive the proceeds from any such policy and use such proceeds as set forth in subparagraph (c) below. Each insurance company shall be directed to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms pay each insured loss directly to Lender instead of Borrower or Borrower and provisions of the related LeaseLender jointly.
(ii) In The proceeds of all insurance shall, at the option of Lender, be applied by Lender in reduction of the Obligations in such order as Lender shall determine whether the same be then matured or unmatured (unless otherwise elected by Lender, no such application shall be deemed to be an advance payment of any subsequently accruing fixed sum), or paid over, subject to such terms and conditions as Lender may in its sole discretion then impose, wholly or in part to Borrower by Lender for the repair and restoration of the Improvements or for any other purpose or object satisfactory to Lender; provided, however, that any such proceeds shall be paid over by Lender to Borrower for the repair and restoration of the Improvements in the event an Insured Casualty and only in the event (A) the amount of insurance proceeds available with respect to a particular loss at a particular Resort Property does not exceed Three Million Dollars ($3,000,000) as to that Resort Property and (B) the Additional Conditions (as defined below) are satisfied. If the amount of insurance proceeds available with respect to a particular loss at a particular Report Property exceeds Three Million Dollars ($3,000,000) as to that Resort Property or if the Additional Conditions are not satisfied, then the entire amount of insurance proceeds shall exceed be governed by the greater first sentence of (a) $100,000.00 or (b) five percent (5%) this paragraph. If insurance proceeds are paid over to Borrower for the purpose of repair and restoration of the Fair Market Value Improvements, Lender, without limitation of the applicable Properties or Improvements in connection with a Hybrid Leaseits right to impose other terms and conditions, then may require receipt and in that event, the applicable Issuer may settle approval by itself and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and ifits architect, in the reasonable judgment discretion of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment both, of the impact of the termination of any Leases due to such Insured Casualty) plans and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant specifications for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation work to be (A) applied to the payment done; disbursement of the Notes without Make Whole Amountproceeds not more frequently than monthly for work done against invoices, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statementslien waivers, title insurance endorsementspolicy endorsements and architect's certifications; retention of holdbacks until completion of construction and expiration of mechanic's lien periods; and receipt of assurance adequate to Lender in its sole judgment that the proceeds remaining after disbursement will be sufficient to complete such repair and replacement. Borrower hereby assigns to Lender for the uses and purposes aforesaid, bondsall insurance required by this Loan Agreement and, plats the proceeds thereof. Lender shall not be responsible for such insurance, for the collection of survey and any insurance moneys, or for the insolvency of any insurer or any insurance underwriter. Application of insurance proceeds by Lender, regardless of the manner or order, shall not waive Performance of the Obligations, cure or waive any default by Borrower in the Performance of the Obligations, or invalidate or affect any act done hereunder because of any such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approvedefault. No payment made prior Lender shall not be obligated to see to the final completion proper application of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time insurance proceeds paid over to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lienBorrower. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account The "Additional Conditions" are as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.follows:
Appears in 1 contract
Samples: Loan and Security Agreement (Cr Resorts Capital S De R L De C V)
Casualty. In the event that, between the date hereof and the applicable Closing, there shall occur any material damage, theft or similar loss with respect to any Acquired Assets, (a) If any Property the Sellers shall promptly give notice to the Purchaser thereof, including the Sellers’ estimate of the amount of casualty insurance (if any) payable in respect thereof, (b) at the Purchaser’s request (which request may be made prior to or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”after the applicable Closing), the applicable Issuer Sellers and their Affiliates shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of use all Reasonable Efforts to promptly collect any amounts due (asubject to applicable deductibles) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements under any relevant insurance policies in connection with a Hybrid Lease, the applicable Issuer may settle therewith and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In remit such amounts to the event an Insured Casualty shall exceed Purchaser on the greater of (a) $100,000.00 applicable Closing Date or (b) five percent (5%) of the Fair Market Value of if collected after the applicable Properties Closing Date) promptly following receipt thereof and (c) to the extent that any such damage, theft or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the similar loss is in an aggregate amount more than not fully covered by insurance, at the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was Purchaser’s request prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuingapplicable Closing, the amounts received in connection Sellers shall either, at their election, (i) promptly repair or replace the relevant Acquired Assets with assets that are substantially comparable at the Sellers’ sole cost and expense or (ii) reimburse the Purchaser for the fair market value of such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Managerdamage, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to theft or loss on the applicable Issuer to reimburse such Issuer or Closing Date, which reimbursement may be setoff against the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), Purchase Price in the case of the Initial Closing Date. Notwithstanding anything in the foregoing to the contrary, the Sellers may elect to not seek recovery under its insurance policies for any such damage, theft or loss, and, if the Sellers so elect, the Sellers shall either (i) promptly repair or replace the relevant Acquired Assets with assets that are substantially comparable at the Sellers’ sole cost and expense or (ii) reimburse the Purchaser for the fair market value of such damage, theft or loss or damages covered by any on the applicable Closing Date, which reimbursement may be setoff against the Purchase Price in the case of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan DocumentsInitial Closing Date.
Appears in 1 contract
Samples: Bill of Sale
Casualty. In the event of any loss, damage, or destruction to the assets or properties of the Company (a) If any including the Real Property or Improvements the improvements thereon) resulting in connection with a Hybrid Lease shall be materially damaged losses of $150,000 or destroyedgreater, in whole or in partafter the date hereof and prior to the Closing, whether by fire fire, theft, vandalism, terrorism, flood, earthquake, force majeure or other cause or casualty (an a “Insured Casualty”), the applicable Issuer Company shall give prompt notice thereof to promptly notify the Indenture Trustee and the Property Manager. Following Purchaser of the occurrence thereof. Upon receipt of an Insured Casualtysuch notice, the applicable Issuer Purchaser shall promptly (or shall promptly cause have the Tenant or Borrower to) proceed right to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected terminate this Agreement in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs provisions of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure conditionSection 8.1(d). The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does such Casualty, if the Purchaser chooses not exceed to terminate the greater of Agreement, the Shareholders shall have the right to (i) cause the Company to repair and restore the loss, damage or destruction before the Closing, in which event (a) $100,000.00 the Shareholder shall cause the Company to restore such assets or properties to substantially the condition in which they existed immediately prior to the Casualty, (b) five percent the Shareholders shall be entitled, but not obligated, to postpone the Closing for up to thirty (5%30) Business Days upon written notice of such postponement to the Purchaser, which notice shall specify a new date for the Closing, and (c) if such repair and restoration work is not completed at Closing, the Purchaser shall have the right to terminate this Agreement or proceed to the Closing, in which event the Purchaser may withhold that portion of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or Purchase Price equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion repair and restoration for such assets or properties, or (ii) without repairing the Casualty, and without recourse or warranty, cause the Company to pay the Purchaser the amount of the restoration, repair, replacement and rebuilding, deductible (2or the self-insured retainage) funds or, at under the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion policy of the restorationCompany covering such assets or properties, repair, replacement whereupon the Closing shall take place as if no Casualty had occurred and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining without any reduction in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) abovePurchase Price.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Samples: Stock Purchase Agreement (Signature Group Holdings Inc)
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an a “Insured Casualty”), the applicable Issuer Borrower that owns such Property shall give prompt written notice thereof to the Indenture Trustee and the Property ManagerLender. Following the occurrence of an Insured a Casualty, the applicable Issuer Borrower that owns the affected Property, regardless of whether Insurance Proceeds are available, shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in law (a safe and secure condition“Restoration”). The expenses incurred by the Property Manager Lender in the adjustment and collection of any amounts received in connection with an Insured Casualty Insurance Proceeds shall become part of the Obligations, shall be deemed a Property Protection Advance and be secured hereby by the Loan Documents and shall be reimbursed by Borrowers to Lender upon demand. Notwithstanding any Casualty, Borrowers shall continue to pay the applicable Issuer Obligations in the time and manner set forth in the Note and in this Agreement. Upon the occurrence of any Casualty, the Borrower that owns the affected Property shall (subject to the Property Manager pursuant right of Lender to elect to do so as set forth in Section 5.2(b)), promptly file a proof of loss with the terms of the Indenturerespective insurance company or companies insuring such Casualty.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured a Casualty that does not exceed the greater to any Property, so long as no Event of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid LeaseDefault has occurred, the applicable Issuer Borrower that owns such Property may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In loss (the “Insurance Proceeds”); provided that such caseadjustment is carried out in a competent and timely manner, such Issuer is hereby authorized and provided further that in the case of a Casualty where the damage to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of applicable Property equals or exceeds the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater lesser of (ax) $100,000.00 or 150,000.00 and (by) five ten percent (510%) of the Fair Market Value of Allocated Loan Amount for such Property (a “Significant Casualty”), any such settlement shall have been approved by Lender, which approval shall not be unreasonably withheld or delayed. In the event the applicable Properties Borrower fails to promptly file a proof of loss with respect to any Casualty or Improvements in connection with a Hybrid Lease, then fails to promptly and in that event, the applicable Issuer may diligently proceed to settle and adjust any claims with respect thereto, or if an Event of Default has occurred, then notwithstanding anything set forth herein to the contrary, Lender shall, at the sole cost and expense of Borrowers, have the right to file such proof of loss, settle and adjust such claim without the consent of the Property Manager any Borrower and agree with the such insurance company or companies on the amount of the Insurance Proceeds in the place and stead of Borrowers and without the consent of Borrowers, and each Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to do so. In the case of a Casualty that is not a Significant Casualty, provided that (i) no Event of Default shall have occurred, (ii) the Restoration can be paid on completed prior to the loss earlier to occur of (A) the date which is twelve (12) months following such Casualty and shall immediately deposit (B) the date which is twelve (12) months prior to the Stated Maturity Date, and (iii) such amounts received Restoration is permitted pursuant to the terms of the applicable Franchise Agreement, then the applicable Borrower is hereby authorized to collect and receipt for any Insurance Proceeds. Any Insurance Proceeds in connection with an Insured a Significant Casualty into (whether or not Lender elects to settle and adjust the Casualty claim or any Borrower settles such claim) shall be due and Condemnation Sub-Account, payable solely to Lender and held by Lender in accordance with the terms of the Indenture and this Agreement.
(iii) . In the event of an Insured Casualty where the loss any Borrower or any party other than Lender is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection a payee on any check representing Insurance Proceeds with a Hybrid Leaserespect to any Casualty, such Borrower shall immediately endorse, and ifcause all such third parties to endorse, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior check payable to the Insured Casualtyorder of Lender. Each Borrower hereby irrevocably appoints Lender as its attorney-in-fact, thencoupled with an interest, if no Event to endorse any such check payable to the order of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable Lender. The expenses incurred by Lender in the Property Manager) adjustment and collection of Insurance Proceeds shall become part of the Obligations, shall be collected secured by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, Loan Documents and shall be distributed reimbursed by Borrowers to Lender upon demand. Each Borrower hereby releases Lender from any and all liability with respect to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost settlement and adjustment by Lender of restoring, repairing, replacing or rebuilding the Property or Improvements any claims in connection with a Hybrid Lease or part thereof subject to the Insured respect of any Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to In the contrary (including in Section 3.20 below), in the case event of loss or damages covered by any of the Property Insurance Policies Policies, the following provisions shall apply with respect to application of Insurance Proceeds:
(i) In the event of a Significant Casualty to any Property securing where (A) in the reasonable judgment of Lender, the Restoration of such Property can be completed prior to the earlier to occur of (1) the date which is twelve (12) months following such Casualty and (2) the date which is twelve (12) months prior to the Stated Maturity Date, (B) such Restoration is permitted pursuant to the terms of the applicable Franchise Agreement, and (C) in the reasonable judgment of Lender, after completion of such Restoration, such Property will have a Mortgage value at least equal to the value immediately prior to such Casualty and the Properties, together, will adequately secure the Outstanding Principal Balance, then, if no Event of Default shall have occurred, the Net Proceeds shall be applied to reimburse the Borrower that owns the affected Property for the cost of the Restoration in the manner set forth below. Borrowers hereby covenant and agree to commence and diligently to prosecute the Restoration; provided always, that Borrowers shall pay all costs of such Restoration in excess of the Net Proceeds made available pursuant to the terms hereof (and if required by Lender, Borrowers shall deposit such excess amount with Lender in advance).
(ii) Except as provided in Section 5.2(c)(i) above, the Insurance Proceeds collected upon any Casualty shall, at the option of Lender in its sole discretion, be applied to the payment of the Obligations or applied to reimburse the applicable Borrower for the cost of the Restoration of the damaged Property in the manner set forth below. Throughout the term of the Loan or any Condemnation if an Event of Default has occurred and is continuing, then Borrowers shall pay to Lender, with respect to any payment of the Obligations pursuant to this Section 5.2(c)(ii), an additional amount equal to the Yield Maintenance Premium; provided, however, that if an Event of Default is not continuing, then the Yield Maintenance Premium shall not be payable. Any such Propertyapplication to the Debt shall (A) be applied to those payments of principal and interest last due under this Agreement but shall not postpone any payments otherwise required pursuant hereunder other than such last due payments and (B) not cause or result in the Monthly Debt Service Payment Amount being re-cast based upon the reduction of the Outstanding Principal Balance and the number of months remaining until the Maturity Date.
(iii) In the event any Borrower is entitled to reimbursement out of the Net Proceeds held by Lender, such Insurance Proceeds shall be disbursed from time to time by Lender so long as the following conditions have been satisfied:
(A) no Event of Default shall have occurred and be continuing;
(B) the Operating Lease relating to the damaged Property shall remain in full force and effect during and after the completion of the Restoration without abatement of rent beyond the time required for Restoration, notwithstanding the occurrence of such Casualty;
(C) such Restoration is permitted pursuant to the terms of the applicable Franchise Agreement;
(D) the Borrower that owns the affected Property shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after such Casualty occurs) and shall diligently pursue the same to satisfactory completion;
(E) Lender shall be satisfied that any operating deficits and all payments of principal and interest under the Note will be paid during the period required for Restoration from (1) the Net Proceeds, or (2) other funds of Borrowers;
(F) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) the date that is twelve (12) months prior to the Stated Maturity Date, (2) the earliest date required for such completion under the terms of the related proceeds Operating Lease or the related Franchise Agreement, (3) such time as may be required under applicable Legal Requirements in order to repair and restore the affected Property to the condition it was in immediately prior to such Casualty, or (4) six (6) months prior to the expiration of the insurance coverage referred to in Section 5.1.1(a)(iii);
(G) the affected Property and the use thereof after the Restoration will be in compliance in all material respects with and permitted under all applicable Legal Requirements;
(H) the Restoration shall be applied done and completed by such Borrower in accordance an expeditious and diligent fashion and in compliance in all material respects with all applicable Legal Requirements; and
(I) such Casualty does not result in any loss of access to the affected Property or the related Loan DocumentsImprovements which in Lender’s reasonable determination would adversely affect the operation, use or value of such Property or the liquidity of the Loan.
Appears in 1 contract
Casualty. (a) If Tenant shall give immediate written notice to Landlord of any Property damage caused to the Premises by fire or Improvements in connection with a Hybrid Lease other casualty. In the event that the Premises shall be materially damaged or destroyeddestroyed by fire or other casualty insurable under standard fire and extended coverage insurance, Landlord shall proceed with reasonable diligence and at its sole cost and expense to rebuild and repair the Premises provided that Landlord shall only be required to spend such amounts that it directly receives from its insurance proceeds towards such repairs. Tenant and Landlord agree to use good faith and commercially reasonable efforts to negotiate a future credit amount towards the purchase price in whole relation to the Option to Purchase if Landlord is unable to restore the Premises to substantially the condition that existed prior to such casualty, exclusive of any alterations, additions, improvements, fixtures and equipment installed by Tenant. In the event that the Premises are damaged or in part, destroyed by fire or other casualty (an “Insured Casualty”whether total or partial), Tenant (and not Landlord) shall have the applicable Issuer shall give prompt notice thereof option to elect to exercise the Indenture Trustee Option to Purchase (if such Option to Purchase is available at such time), and instruct Landlord not to restore the Property Manager. Following the occurrence of an Insured CasualtyPremises, the applicable Issuer shall promptly (or shall promptly cause the and receive all insurance proceeds received by Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character and/or Landlord as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs a result of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenturecasualty event.
(b) In case Landlord’s obligation to rebuild and repair shall in any event be limited to restoring the Premises to substantially the condition which existed prior to such casualty, exclusive of loss any alterations, additions, improvements, fixtures and equipment installed by Tenant. Tenant agrees that promptly after completion of such work by Landlord, Tenant will proceed with reasonable diligence and at Tenant’s sole cost and expense to restore, repair and replace all alterations, additions, improvements, fixtures, signs and equipment installed by Tenant. Tenant agrees that during any period of reconstruction or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any repair of the Property Insurance PoliciesPremises, Tenant will continue the operation of its business within the Premises to the extent practicable. During the period from the occurrence of the casualty until Landlord’s repairs are completed, the following provisions Monthly Rent shall apply:
(i) In be reduced to such extent as may be fair and reasonable under the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) circumstances; however, there shall be no abatement of the Fair Market Value of the applicable Property other rent or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the losspayment obligations provided for herein. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained hereincontrary, Tenant rather than Landlord shall be solely responsible for the cost and expense of all rebuilds and repairs in the event that such casualty was due to Tenant’s acts or omissions (provided however, that Landlord shall assign all net proceeds received by Landlord, if any Permitted Lease shall obligate the Tenant thereunder any, from its insurance provider to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) aboveTenant).
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Samples: Lease Agreement (EVO Transportation & Energy Services, Inc.)
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer shall give prompt notice thereof to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 any material damage to or (b) five percent (5%) destruction of the Fair Market Value Trust Estate or any part thereof, Borrower will promptly give written notice to Lender, generally describing the nature and extent of such damage or destruction. No damage to or destruction of the applicable Property or Improvements Trust Estate shall relieve Borrower of its obligation to pay any monetary sum due under the Loan Documents at the time and in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without manner provided in the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related LeaseLoan Documents.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 any damage to or (b) five percent (5%) destruction of the Fair Market Value Trust Estate or any part thereof, Borrower, whether or not the Proceeds, if any, on account of such damage or destruction shall be sufficient for the applicable Properties or Improvements in connection with a Hybrid Leasepurpose, then and in that eventat its expense, shall promptly cause the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount Restoration to be paid on the loss commenced and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreementcompleted.
(iii) In Proceeds received by Lender and Borrower on account of any occurrence of damage to or destruction of the event Trust Estate or any part thereof, less the costs, fees and expenses incurred by Lender and Borrower in the collection thereof, including, without limitation, adjuster’s fees and expenses and attorneys’ fees and expenses (the “Net Insurance Proceeds”), shall be paid to (1) Borrower, if the amount of an Insured Casualty where such Net Insurance Proceeds is less than $100,000 and applied by Borrower toward the loss cost of the Restoration, and (2) Lender, if the amount of such Net Insurance Proceeds is $100,000 or greater. Net Insurance Proceeds paid to Lender shall be held and disbursed by Lender, or as Lender may from time to time direct, as the Restoration progresses, to pay or reimburse Borrower for the cost of the Restoration, upon written request of Borrower accompanied by evidence, reasonably satisfactory to Lender, that (aa) the Restoration is in an aggregate full compliance with all Applicable Regulations and all private restrictions and requirements, (bb) the amount more than the greater requested has been paid or is then due and payable and Xxxxxxxx Xx. 00000 GE No. 8004-2212 0000 Xxxxxx Xxxxx Wilmington, North Carolina is properly a part of such cost, (acc) $100,000.00 there are no mechanics’ or (b) five percent (5%) of the Fair Market Value of the applicable Properties similar liens for labor or Improvements materials theretofore supplied in connection with a Hybrid Leasethe Restoration, (dd) if the estimated cost of the Restoration exceeds the Net Insurance Proceeds (exclusive of Proceeds received from Borrower’s business income insurance), Borrower has deposited into an escrow satisfactory to Lender such excess amount, which sum will be disbursed pursuant to escrow instructions satisfactory to Lender, (ee) the balance of such Net Insurance Proceeds, together with the funds deposited into escrow, if any, pursuant to the preceding subsection (dd), after making the payment requested will be sufficient to pay the balance of the cost of the Restoration, and if(ff) the Master Lease is in full force and effect. Upon receipt by Lender of evidence reasonably satisfactory to it that the Restoration has been completed and the cost thereof paid in full, and that there are no mechanics’ or similar liens for labor or materials supplied in connection therewith, the reasonable judgment balance, if any, of such Net Insurance Proceeds shall be paid to Borrower. If at the time of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior damage or destruction to the Insured Casualty, then, if no Trust Estate or at any time thereafter an Event of Default under the Indenture shall have occurred and be then continuingcontinuing under the Loan Documents, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) all Net Insurance Proceeds shall be collected by the Property Managerpaid to Lender, and promptly delivered Lender may retain and apply the Net Insurance Proceeds toward the Obligations whether or not then due and payable, in such order, priority and proportions as Lender in its discretion shall deem proper, or to and deposited by Indenture Trustee into the Casualty and Condemnation cure such Event of Default, or, in Lender’s discretion, Lender may pay such Net Insurance Proceeds Sub-Account, and shall in whole or in part to Borrower to be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for applied toward the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, providedRestoration. If Lender shall receive and retain Net Insurance Proceeds, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant lien of this Deed of Trust shall pay all costs (and if required be reduced only by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee amount received and retained by Lender and actually applied by Lender in advance) of such restoring, repairing, replacing or rebuilding in excess reduction of the net proceeds made available pursuant to the terms hereofObligations.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Jameson Inns Inc)
Casualty. (a) If any Property or Improvements in connection with shall sustain a Hybrid Lease shall be materially damaged or destroyedCasualty, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicable Issuer Borrower shall give prompt notice thereof of such Casualty to Lender and Borrower shall promptly commence and diligently prosecute to completion the repair and restoration of the affected Property as nearly as possible to the Indenture Trustee condition the affected Property was in immediately prior to such Casualty (a “Restoration”) and otherwise in accordance with Section 5.3, it being understood, however, that Borrower shall not be obligated to restore the affected Property Manager. Following to the occurrence precise condition of an Insured Casualtythe affected Property prior to such Casualty provided the affected Property is restored, to the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restoreextent practicable, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, the Casualty. Borrower shall pay all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restorationRestoration whether or not such costs are covered by insurance. Lender may, repair, replacement or rebuilding, such Issuer but shall not be required to perform such restorationobligated to, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case make proof of loss or damages to a Property if not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered made promptly by any of the Property Insurance Policies, the following provisions shall apply:
(i) Borrower. In the event of an Insured a Casualty that where the loss does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid LeaseRestoration Threshold as reasonably determined by Lender, the applicable Issuer Borrower may settle and adjust any claim without the consent such claim; provided that (a) no Event of the Property Manager Default has occurred and agree with the insurance company or companies on the amount to be paid upon the lossis continuing and (b) such adjustment is carried out in a commercially reasonable and timely manner. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event of a Casualty where the loss exceeds the Restoration Threshold as reasonably determined by Lender or if an Insured Casualty shall exceed the greater Event of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid LeaseDefault then exists, then and in that event, the applicable Issuer Borrower may settle and adjust any such claim without only with the consent of Lender (which consent shall not be unreasonably withheld or delayed) and Lender shall have the Property Manager and agree with the insurance company or companies on the amount opportunity to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Accountparticipate, at Borrower’s cost, in accordance any such adjustments. To the extent that any of the provisions of this Section 5.2.1 conflict with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid any Leased Fee Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit such provisions shall not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation apply with respect to any such PropertyCasualty. Notwithstanding any Casualty, Borrower shall continue to pay the related proceeds shall be applied Debt at the time and in accordance with the related Loan Documentsmanner provided for its payment in the Note and in this Agreement.
Appears in 1 contract
Samples: Loan Agreement (Industrial Logistics Properties Trust)
Casualty. (a) If any Property or Improvements in connection with a Hybrid Lease if the Leased Premises shall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”)and if such damage does not render all or a substantial portion of the Leased Premises untenantable then, subject to this Section 14, Landlord shall proceed with all appropriate diligence to repair and restore the applicable Issuer shall give prompt notice thereof Leased Premises so as to render the Leased Premises tenantable and return it to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as condition it was in prior to such casualty. If any such damage renders all or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer shall not be required to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms portion of the Indenture.
Leased Premises untenantable, Landlord shall, within thirty (b30) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property days after the occurrence of an Insured Casualtysuch damage, estimate the applicable Issuer, at length of time that will be required to substantially complete the direction repair and restoration of the Property ManagerLeased Premises, necessitated by such damage and shall deposit by notice advise Tenant of such estimate. If it is so estimated that the proceeds amount of an Insured Casualty in time required to If any such fire or casualty damage renders any portion of the Casualty Leased Premises untenantable and Condemnation Sub-Account and Indenture Trustee if this Lease shall make not be terminated (or until such proceeds available, subject only time as this Lease is terminated) pursuant to the conditions set forth in foregoing provisions of this Section 14 by reason of such Permitted Lease damage, and provided that such fire or casualty was not caused as a result of the conditions set forth in the first sentence negligence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein Tenant, its employees and/or agents, then a percentage portion of Rent corresponding to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any percentage portion of the Property Insurance Policies Leased Premises that was rendered untenantable shall abatx xxxing the period beginning with respect the date of such damage and ending with the date when Landlord substantially completes its repair or restoration required hereunder. If this Lease is terminated pursuant to a Property securing a Mortgage Loan or any Condemnation with respect to any such Propertythis Section 14, the related proceeds Rent shall be applied in accordance with apportioned on a per diem basis and be paid to the related Loan Documentsdate of damage.
Appears in 1 contract
Casualty. (a) If With respect to each Cemetery, if any Property Improvements, or Improvements in connection with a Hybrid Lease any part thereof, shall be materially damaged or destroyed, in whole or in part, destroyed by fire or other casualty (an “Insured Casualty”)casualty, or ordered to be demolished by the applicable Issuer action of any public authority in consequence of a fire or other casualty, this Lease shall give prompt notice thereof remain in full force and effect, and Tenant shall, at its expense, proceed, with all reasonable dispatch, to repair or rebuild such Improvements, or what may remain thereof, so as to restore them as nearly as practicable to the Indenture Trustee and the Property Manager. Following the occurrence of an Insured Casualty, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as condition they were in immediately prior to such damage or destruction; provided, all however, that Tenant shall be under no obligation to repair or rebuild any Improvements constructed by Tenant to the extent that the failure to do so would not materially impair the ability to operate the Cemetery in question in the same manner in which it was operated immediately prior to the Commencement Date. All proceeds of insurance, whether paid to Tenant or Landlord, shall be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty made available to reimburse the applicable Issuer Tenant for the costs purpose of restoring such damage or destruction provided, however, that all proceeds of insurance payable with respect to Improvements constructed by Tenant shall be paid to Tenant. To the extent that the Tenant does not rebuild or repair any Improvement constructed by Tenant, the amount of the insurance proceeds received and retained by Tenant shall be deducted from the original cost of such restorationImprovement for the purpose of calculating the unamortized amount payable to Tenant for Development Capital Expenditures and Capital Equipment Expenditures, repairas applicable, replacement under Section 9.3.2(c)(i) and Section 9.3.2(c)(ii), respectively. In no event shall the Fixed Rent reserved in this Lease, or rebuildingany item of Additional Rent provided for here, such Issuer shall not be required abated to perform such restoration, repair, replacement or rebuilding, provided, further, that such Issuer shall take at its own expense such steps as may be reasonably required to put and maintain the Improvements any extent in a safe and secure condition. The expenses incurred by the Property Manager in the adjustment and collection of any amounts received in connection with an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer to the Property Manager pursuant to the terms of the Indenture.
(b) In case of loss or damages to a Property not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by any of the Property Insurance Policies, the following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed the greater of (a) $100,000.00 a fire or (b) five percent (5%) other casualty, regardless of the Fair Market Value extent of the applicable Property or Improvements in connection with a Hybrid Lease, the applicable Issuer may settle damage and adjust any claim without the consent regardless of the Property Manager and agree with the insurance company or companies on the amount to be paid upon the loss. In utility of such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty in accordance with the terms and provisions of the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, in accordance with the terms of the Indenture and this Agreement.
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecuteImprovements, or cause the applicable Tenant to commence and diligently prosecuteportions thereof, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, remaining undamaged at the written direction of the Property Manager, upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restoration, repair, replacement and rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of the Indenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) aboveCemetery.
(vi) Notwithstanding anything to the contrary contained herein, if any Permitted Lease shall obligate the Tenant thereunder to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction of the Property Manager, shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies with respect to a Property securing a Mortgage Loan or any Condemnation with respect to any such Property, the related proceeds shall be applied in accordance with the related Loan Documents.
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Casualty. (a) If In the event of any damage or destruction, with a repair or replacement cost of more than $1,000,000 in the aggregate, to the Mortgaged Property or Improvements in connection with a Hybrid Lease shall be materially damaged or destroyed, in whole or in part, the other Collateral by reason of fire or other hazard or casualty (an collectively, a “Insured Casualty”), the applicable Issuer Mortgagor shall give prompt immediate written notice thereof to the Indenture Trustee Mortgagee and proceed with reasonable diligence, in full compliance with all applicable laws and regulations (“Legal Requirements”), to repair, restore, rebuild or replace the Property Manager. Following the occurrence of an Insured Casualtyaffected property (collectively, the applicable Issuer shall promptly (or shall promptly cause the Tenant or Borrower to) proceed “Repair Work”); provided, however, that if a Casualty affects any improvements that any tenant is required to repair, restore, repairrebuild or replace following a Casualty under the terms of any Lease, replace or rebuild then the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law; provided that if the Property Manager shall not direct the Indenture Trustee to make any amounts received in connection with such Insured Casualty available to reimburse the applicable Issuer for the costs of such restoration, repair, replacement or rebuilding, such Issuer Mortgagor shall not be required to perform such restoration, repair, replacement restore, rebuild or rebuildingreplace such improvements. If pursuant to paragraph (c) below, providedthe Mortgagee applies insurance proceeds to the Obligations and does not release the same to the Mortgagor, further, that such Issuer the obligation of the Mortgagor to complete the Repair Work shall take at its own expense such steps as may be limited to taking all actions reasonably required to put and maintain make the Improvements in a Mortgaged Property safe and secure condition. The expenses incurred by in compliance with all Legal Requirements and to restore the undamaged portion of the Mortgaged Property Manager in the adjustment and collection of any amounts received in connection with to an Insured Casualty shall be deemed a Property Protection Advance and be secured hereby and shall be reimbursed by the applicable Issuer economically functional unit to the Property Manager pursuant extent that it is reasonably possible to the terms of the Indenturedo so.
(b) In case All property insurance claims shall be adjusted by the Mortgagor at the Mortgagor’s sole cost and expense, except that the adjustment of loss or damages all property insurance claims of more than $1,000,000 shall be subject to a Property the Mortgagee’s prior written approval, which shall not securing a Mortgage Loan or Improvements in connection with a Hybrid Lease covered by be unreasonably withheld; provided that if any Event of Default exists, the Mortgagee shall have the right to adjust and compromise such claims without the approval of the Property Insurance Policies, the following provisions shall apply:Mortgagor.
(i1) In the event of an Insured any Casualty that for which the estimated cost of repair, restoration, rebuilding or replacement (collectively, the “Repair Costs”) does not exceed $1,000,000, all proceeds of insurance shall be paid to the greater Mortgagor, and such insurance proceeds shall be used by the Mortgagor for the Repair Work and (2) in the event of (a) any Casualty for which the estimated Repair Costs exceed $100,000.00 or (b) five percent (5%) 1,000,000, all proceeds of insurance shall be paid to the Mortgagee and, the Mortgagee shall release so much of the Fair Market Value insurance proceeds as may be required to pay for the Repair Costs in accordance with the provisions of paragraph (d) below (and any excess shall be released to Borrower upon completion of the applicable Property or Improvements in connection Repair Work). The provisions of this subsection (c) shall not apply with a Hybrid respect to (x) proceeds of insurance maintained by any tenant under any Lease, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to such proceeds shall be paid upon the loss. In such case, such Issuer is hereby authorized to collect and to distribute such amounts distributed in connection with an Insured Casualty applied in accordance with the terms and of such Lease, provided, that if any such Lease requires that proceeds of insurance be paid to the Mortgagor, then the provisions of this subsection (c) shall apply with respect to proceeds of insurance so paid to the related Lease.
(ii) In the event an Insured Casualty shall exceed the greater of (a) $100,000.00 Mortgagor; or (b) five percent (5%) y), provided that the Mortgagee does not then hold a mortgage on both the 113 Xxxxxxxx Unit and the 115 Xxxxxxxx Unit of the Fair Market Value Condominium, proceeds of insurance maintained by the applicable Properties Condominium Association or Improvements in connection with a Hybrid LeaseCondominium Trustees, then and in that event, the applicable Issuer may settle and adjust any claim without the consent of the Property Manager and agree with the insurance company or companies on the amount to such proceeds shall be paid on the loss and shall immediately deposit such amounts received in connection with an Insured Casualty into the Casualty and Condemnation Sub-Account, applied in accordance with the terms of the Indenture Condominium Documents.
(d) In the event that insurance proceeds are paid to the Mortgagee in accordance with Section 1.8(c)(2), then the Mortgagee shall release so much of the insurance proceeds as may be required to pay for the Repair Costs upon the satisfaction of the following conditions:
(i) prior written approval by the Mortgagee, and this Agreement.the Mortgagee’s Consultant, which approval shall not be unreasonably withheld or delayed, of plans, specifications, cost estimates, contracts and bonds for the restoration or repair of the loss or damage;
(ii) waivers of lien, architect’s certificates, contractor’s sworn statements and other evidence of costs, payments and lien -free completion as the Mortgagee may in good faith require;
(iii) In the event of an Insured Casualty where the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b) five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connection with a Hybrid Lease, and if, in the reasonable judgment of the Property Manager the Property can be restored within twenty-four (24) months to an economic unit not materially less valuable (including an assessment of the impact of the termination of any Leases due to such Insured Casualty) and not materially less useful than the same was prior to the Insured Casualty, then, if no Event of Default under the Indenture shall have occurred and be then continuing, the amounts received in connection with such an Insured Casualty (after reimbursement of any reasonable expenses incurred by the Property Manager) funds shall be collected by the Property Manager, and promptly delivered to and deposited by Indenture Trustee into the Casualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicable Issuer to reimburse such Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below, provided, the Indenture Trustee makes the amounts received in connection with such an Insured Casualty available for the same, such Issuer hereby covenants and agrees to commence and diligently prosecute, or cause the applicable Tenant to commence and diligently prosecute, such restoring, repairing, replacing or rebuilding; provided, that such Issuer or the subject Tenant shall pay all costs (and if required by the Property Manager, such Issuer shall deposit the total thereof with the Indenture Trustee in advance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the terms hereof.
(iv) Subject to clauses (i)-(iii) in this Section 3.19(b), an Issuer may elect for proceeds from an Insured Casualty or Condemnation to be (A) applied to the payment of the Notes without Make Whole Amount, (B) applied to reimburse the applicable Issuer or the subject Tenant for the cost of restoring, repairing, replacing or rebuilding the Property or Improvements in connection with a Hybrid Lease or part thereof subject to the Insured Casualty, in the manner set forth below or (C) provided that such amounts are greater than or equal to the Collateral Value of the related Property, deposited into the Release Account to be used to acquire Qualified Substitute Properties, Qualified Substitute Hybrid Leases or Qualified Substitute Loans, as applicable.
(v) In the event the applicable Issuer is entitled to reimbursement out of the amounts held by the Indenture Trustee, such amounts shall be disbursed from time to time by the Indenture Trustee, at the written direction of the Property Manager, released upon the Property Manager being furnished with (1) evidence satisfactory to it of the estimated cost of completion of the restoration, repair, replacement and rebuilding, (2) funds or, at the Property Manager’s option, assurances reasonably satisfactory to the Property Manager that such funds are available, sufficient in addition to the proceeds to complete the proposed restoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey and such other reasonable evidences of cost, payment and performance as the Property Manager may reasonably require and approve. No payment made prior to the final completion of the restorationRepair Work, repairunless the Mortgagor requests earlier funding, replacement and rebuilding shall exceed ninety percent (90%) in which event partial monthly disbursements equal to 95% of the value of the work performed from time to time; funds other completed (or, if the applicable contract is on a cost plus basis, then 95% of the costs of the work completed if such cost is less than proceeds the value thereof) shall be disbursed made prior to disbursement final completion of such proceeds; the repair, restoration or replacement and at the balance of the disbursements shall be made upon full completion and the receipt by the Mortgagee of satisfactory evidence of payment and release of all times, liens relating to the restoration work;
(iv) determination in good faith by the Mortgagee that the undisbursed balance of such proceeds remaining in on deposit with the hands of the Indenture TrusteeMortgagee, together with additional funds deposited by the Mortgagor for that purpose or irrevocably committed to the satisfaction of the Property Manager by or on behalf of such Issuer for that purpose, shall be at least sufficient in the reasonable judgment of the Property Manager to pay for the cost of completion of the restoration, repair, replacement or rebuildingremaining Repair Costs, free and clear of all liens or and claims for lien. Any surplus which ;
(v) all work shall comply with Legal Requirements and shall be of a quality that is consistent with (or better than) the original construction of the Mortgaged Property or the construction of improvements to the Mortgaged Property pursuant to the Loan Agreement, as the case may remain out of proceeds held be as reasonably determined by the Indenture Trustee after payment of such costs of restoration, repair, replacement or rebuilding shall be transferred to the Collection Account as Insurance Proceeds and be applied to the payment of the Notes as provided in subparagraph (iii)(A) above.Mortgagee’s Consultant;
(vi) Notwithstanding anything sufficient Tenants having a termination right as a result of such Casualty shall have waived in writing any right to terminate their respective Leases as a result of such Casualty such that the Pro Forma Debt Service Coverage ratio following the restoration is not less than 1.25:1.00;
(vii) the Mortgaged Property is free and clear of all encumbrances except Permitted Title Exceptions; and
(viii) the absence of any Default or Event of Default. The Mortgagee shall apply to the contrary contained herein, if Obligations any Permitted Lease shall obligate such insurance proceeds not paid to the Tenant thereunder Mortgagor due to repair, restore or rebuild the affected Property after the occurrence of an Insured Casualty, the applicable Issuer, at the direction Mortgagor’s failure to satisfy all of the Property Manager, foregoing conditions. The provisions of this subsection (d) shall deposit the proceeds of an Insured Casualty in the Casualty and Condemnation Sub-Account and Indenture Trustee shall make such proceeds available, subject only to the conditions set forth in such Permitted Lease and the conditions set forth in the first sentence of subparagraph (iv) above.
(c) Notwithstanding anything contained herein to the contrary (including in Section 3.20 below), in the case of loss or damages covered by any of the Property Insurance Policies not apply with respect to a Property securing a Mortgage Loan or (x) proceeds of insurance maintained by any Condemnation with respect to tenant under any Lease, and such Property, the related proceeds shall be paid and applied in accordance with the related Loan terms of such Lease; provided, that if any such Lease requires that proceeds of insurance be paid to the Mortgagor, then the provisions of this subsection (d) shall apply with respect to proceeds of insurance to be paid to the Mortgagor; or (y), provided that the Mortgagee does not then hold a mortgage on both the 113 Xxxxxxxx Unit and the 115 Xxxxxxxx Unit of the Condominium, proceeds of insurance maintained by the Condominium Association or Condominium Trustees, and such proceeds shall be paid and applied in accordance with the terms of the Condominium Documents.
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Samples: First Amendment (uniQure N.V.)
