Condemnation and Insurance Proceeds. (a) The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, are hereby assigned to and shall be paid to Beneficiary. In addition, all causes of action, whether accrued before or after the date of this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, without limitation, causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security, and the proceeds thereof shall be paid to Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Trustor, immediately upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of the institution of any proceedings relating to condemnation or other taking of or damage or injury to the Mortgaged Property or any portion thereof, will immediately notify Beneficiary in writing. Beneficiary, in its sole discretion, may participate in any such proceedings and may join Trustor in adjusting any loss covered by insurance. (b) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of any damage or injury to or a partial condemnation or other partial taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied, as follows: (1) Beneficiary shall consent to the application of such payments to the restoration of the Mortgaged Property so damaged if and only if Trustor fulfills all of the following conditions (a breach of any one of which shall constitute an Event of Default under this Deed of Trust and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trust, the Note, or any Related Agreement; (b) that Trustor is not in default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, shall be sufficient in Beneficiary's sole judgment to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which plans, specifications and drawings shall not be substantially modified, changed or revised without the Beneficiary's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and trust company satisfactory to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedowns, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or (2) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in the sole and absolute discretion of Beneficiary (a) to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's expenses incurred in the rebuilding and restoration of the Mortgaged Property. In the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive. (c) If any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the Beneficiary's request therefor, the amount of the loss not so covered. (d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of a total condemnation or other total taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction of the indebtedness secured hereby shall be paid to Trustor as its interest may then appear. (e) Any application of such amounts or any portion thereof to any indebtedness secured hereby shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice. (f) If any part of any automobile parking areas included within the Mortgaged Property is taken by condemnation or before such areas are otherwise reduced, Trustor shall provide parking facilities in kind, size and location to comply with all Leases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulations.
Appears in 4 contracts
Samples: Deed of Trust (Redwood Mortgage Investors IX), Construction Deed of Trust (Redwood Mortgage Investors IX), Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Redwood Mortgage Investors IX)
Condemnation and Insurance Proceeds. (a) A. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, are hereby assigned to and shall be paid to Beneficiary. In addition, all causes of action, whether accrued before or after the date of this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor Grantor by Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, without limitation, including causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security, security and the proceeds thereof shall be paid to Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Trustor.
B. Grantor, immediately promptly upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of the institution of any proceedings relating to condemnation or other taking of or damage or injury (exceeding $250,000 with respect to damage or injury, provided no Event of Default is then in existence) to the Mortgaged Property or any portion thereof, or knowledge of any casualty damage (exceeding $250,000, provided no Event of Default is then in existence) to the Mortgaged Property, will immediately promptly notify Beneficiary in writing. Beneficiary, in its sole discretion, Beneficiary may participate in any such proceedings and may join Trustor Grantor in adjusting any loss covered by insurance.
(b) C. All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor Grantor may receive or to which Trustor Grantor may become entitled with respect to the Mortgaged Property or any part thereof exceeding $250,000 (or, if an Event of Default is then in the event existence, all such compensation, awards, proceeds, damages, insurance recoveries, rights of action and payments) with respect to any damage or injury to or a partial condemnation or other partial taking of the Mortgaged Property one occurrence giving rise thereto shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied, as follows:
(1) in the sole and absolute discretion of Beneficiary shall consent and without regard to the adequacy of its security hereunder, but subject to the provisions of subsection (D) below with respect to any condemnation proceeds or insurance recoveries resulting from condemnation, damage or injury to the Mortgaged Property, to the payment or prepayment of the Obligations in such order as Beneficiary may determine, or to the reimbursement of Grantor for expenses incurred by it in the repair or restoration of the Mortgaged Property. Any application of such payments amounts or any portion thereof to the Obligations or any release of funds by Beneficiary to Grantor shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice.
D. In the event of any condemnation or other taking or damage or injury to the Mortgaged Property, if Grantor shall seek to apply any such condemnation proceeds or insurance recoveries to the rebuilding and restoration of the Mortgaged Property so damaged if damaged, then Beneficiary shall make such condemnation proceeds and only if Trustor fulfills insurance recoveries available, providing that Grantor shall have fulfilled all of the following conditions conditions:
(a breach of any one of which shall constitute an i) no Event of Default under this Deed of Trust and (as defined in Article II below) shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding occurred under this Deed of Trust, the Note, or any Related Agreement; ;
(bii) that Trustor is Grantor shall not be in material default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force leases, licenses or other occupancy agreements, to which Grantor is a party and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering which affects the Mortgaged Property for the longer of twelve Property;
(12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (eiii) Beneficiary is shall be satisfied that during the period from the time of damage such condemnation proceeds or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leasesinsurance recoveries shall in addition to any cash Grantor can use without disrupting its business operations, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of TrustTrust (and any other liens expressly approved by the terms of this Deed of Trust or by Beneficiary), or, in the event that such condemnation proceeds or insurance recoveries are in Beneficiary's sole ’s judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor then,
(a) in the case of damage or injury to the Mortgaged Property, Grantor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceedsrecoveries, shall be sufficient in Beneficiary's sole ’s reasonable judgment to restore and rebuild the Mortgaged Property; , and
(gb) in the case of a partial condemnation or other taking, Grantor shall deposit promptly with Beneficiary funds which, together with the condemnation proceeds shall be sufficient in Beneficiary’s judgment to restore what remains of the Mortgaged Property to an economically viable property;
(iv) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which approval shall not be unreasonably withheld, conditioned or delayed. The plans, specifications and drawings shall provide for the reconstruction of the Mortgaged Property to its original condition (unless otherwise approved by Beneficiary, which approval shall not be substantially modifiedunreasonably withheld, changed conditioned or revised delayed). The plans shall not be modified in any material respect without the Beneficiary's ’s prior written consent; , which consent shall not be unreasonably withheld, conditioned or delayed;
(hv) Beneficiary shall also have approved all prime contractors and subcontractors, and the general contract or contracts the Trustor Grantor proposes to enter into with respect to the restoration and rebuilding; and , which approval Beneficiary shall not unreasonably withhold or delay;
(ivi) any and all monies which are made available for restoration and rebuilding hereunder shall be held in an interest-bearing account (which interest shall become a part of such fund) and disbursed through Beneficiary, the Trustee or a title insurance and or trust company satisfactory to Beneficiary, in accord accordance with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedownsdate-downs, and the provision of payment and performance bonds by TrustorGrantor, or in any other manner approved by Beneficiary in Beneficiary's sole ’s reasonable discretion; orand
(2vii) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments Beneficiary shall be applied in satisfied that the sole and absolute discretion of Beneficiary (a) to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's expenses incurred in the rebuilding and restoration quality of the Mortgaged Property. In materials and workmanship of the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part repair or reconstruction of the Mortgaged Property is damaged or destroyed and will be at least substantially equal to the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days quality of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action materials and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of a total condemnation or other total taking workmanship of the Mortgaged Property prior to such damage. The excess of the above condemnation proceeds or insurance recoveries above the amount necessary to complete such restoration or rebuilding, if any, shall be paid over disbursed to Grantor if Beneficiary and determines, in its reasonable discretion, that its security under this Deed of Trust will not be impaired. Otherwise, such excess shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of as a credit upon the same, and then shall be applied to the payment or prepayment with any applicable prepayment premium of any indebtedness Obligations secured hereby in such order as Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction of the indebtedness secured hereby shall be paid to Trustor as its interest may then appearhereby.
(e) Any application of such amounts or any portion thereof to any indebtedness secured hereby shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice.
(f) If any part of any automobile parking areas included within the Mortgaged Property is taken by condemnation or before such areas are otherwise reduced, Trustor shall provide parking facilities in kind, size and location to comply with all Leases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulations.
Appears in 3 contracts
Samples: Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (Crimson Wine Group, LTD), Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (Crimson Wine Group, LTD), Trust Deed, Assignment of Rents, Security Agreement and Fixture Filing (Crimson Wine Group, LTD)
Condemnation and Insurance Proceeds. (a) The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, are hereby assigned to and shall be paid to Beneficiary. In addition, all causes of action, whether accrued before or after the date of this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, without limitation, causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security, and the proceeds thereof shall be paid to Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Trustor, immediately upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of the institution of any proceedings relating to condemnation or other taking of or damage or injury to the Mortgaged Property or any portion thereof, will immediately notify Beneficiary in writing. Beneficiary, in its sole discretion, may participate in any such proceedings and may join Trustor in adjusting any loss covered by insurance.
(b) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of any damage or injury to or a partial condemnation or other partial taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied, as follows:
(1) Beneficiary shall consent to the application of such payments to the restoration of the Mortgaged Property so damaged if and only if Trustor fulfills all of the following conditions (a breach of any one of which shall constitute an Event of Default under this Deed of Trust and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trust, the Note, or any Related Agreement; (b) that Trustor is not in default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "“Gap Period"”) Trustor's ’s net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "“Leases"”) which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's ’s obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's ’s sole judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, shall be sufficient in Beneficiary's ’s sole judgment to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which plans, specifications and drawings shall not be substantially modified, changed or revised without the Beneficiary's ’s prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and trust company satisfactory to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedowns, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's ’s sole discretion; or
(2) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in the sole and absolute discretion of Beneficiary (a) to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's ’s expenses incurred in the rebuilding and restoration of the Mortgaged Property. In the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the Beneficiary's ’s request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of a total condemnation or other total taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction of the indebtedness secured hereby shall be paid to Trustor as its interest may then appear.
(e) Any application of such amounts or any portion thereof to any indebtedness secured hereby shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice.
(f) If any part of any automobile parking areas included within the Mortgaged Property is taken by condemnation or before such areas are otherwise reduced, Trustor shall provide parking facilities in kind, size and location to comply with all Leases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulations.
Appears in 2 contracts
Samples: Deed of Trust (Redwood Mortgage Investors IX), Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Redwood Mortgage Investors Viii)
Condemnation and Insurance Proceeds. (a) The proceeds of any insurance, award or claim for damages, direct or consequential, in connection with any condemnation or other taking of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, are hereby assigned to and shall be paid to BeneficiaryBeneficiary as additional security. In addition, all causes of action, whether accrued before or after the date of this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, including without limitation, limitation causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security, and the proceeds thereof shall be paid to Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Trustor, immediately upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of the institution of any proceedings relating to condemnation or other taking of or damage or injury to the Mortgaged Property or any portion thereof, or knowledge of any casualty damage to the Mortgaged Property or damage in any other manner, will immediately notify Beneficiary in writing. Beneficiary, in its sole discretion, Beneficiary may participate in any such proceedings and may join Trustor in adjusting any loss covered by insurance.
(b) . All compensation, awards, proceeds, damages, claims, insurance insurance, recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of or any damage or injury to or a partial condemnation or other partial taking of the Mortgaged Property part thereof shall be paid over to the Beneficiary and shall be applied first toward reimbursement of all reasonable costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied, as follows:
including reasonable attorney’s fees. To the extent such funds are available more than sixty (160) Beneficiary shall consent days prior to the application Maturity Date specified in the P/M Note, beneficiary shall permit Trustor to use the balance of such payments to the restoration of the Mortgaged Property so damaged if and only if Trustor fulfills all of the following conditions (a breach of any one of which shall constitute an Event of Default under this Deed of Trust and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trust, the Note, or any Related Agreement; (b) that Trustor is not in default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, shall be sufficient in Beneficiary's sole judgment to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which plans, specifications and drawings shall not be substantially modified, changed or revised without the Beneficiary's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and trust company satisfactory to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedowns, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or
(2) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in the sole and absolute discretion of Beneficiary (a) to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's expenses incurred in the rebuilding and restoration of the Mortgaged Property. In the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive (the “Net Claims Proceeds”) to pay costs of repairing or to which Trustor may become entitled with respect to reconstructing the Mortgaged Property in the event manner described below, provided (i) the Net Claims Proceeds are sufficient in Beneficiary’s determination to pay for the total cost of repair or reconstruction; or Trustor has provided its own funds in an amount equal to the difference between the Net Claims Proceeds and a total condemnation or other total taking reasonable estimate, made by Trustor and found acceptable to Beneficiary, of the Mortgaged Property total cost of repair or reconstruction, and (ii) no Event of Default shall have occurred and be paid over continuing hereunder. If Beneficiary finds that one or more of the foregoing conditions are not satisfied, Beneficiary may elect, in its sole discretion, either to Beneficiary and shall be applied first toward reimbursement apply the Net Claims Proceeds in payment of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction of the indebtedness secured hereby shall be paid to Trustor as its interest may then appear.
(e) Any application of such amounts or any portion thereof of the P/M Note or to any indebtedness secured hereby shall not be construed make the Net Claims Proceeds available to cure Trustor to pay the costs of reconstructing or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice.
(f) If any part of any automobile parking areas included within repairing the Mortgaged Property is taken by Property. Trustor hereby specifically, unconditionally and irrevocably waives all rights of a property owner granted under California Code of Civil Procedure Section 1265.225(a), which provides for allocation of condemnation or before such areas are otherwise reduced, Trustor shall provide parking facilities in kind, size proceeds between a property owner and location to comply with all Leasesa lienholder, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance other law or successor statute of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulationssimilar import.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Limoneira CO), Purchase and Sale Agreement (Limoneira CO)
Condemnation and Insurance Proceeds. (a) The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, are hereby assigned to and shall be paid to Beneficiary. In addition, all causes of action, whether accrued before or after the date of this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor Grantor by Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, including without limitation, limitation causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security, and the proceeds thereof shall be paid to Beneficiary. Notwithstanding such assignment, Grantor shall have the right, prior to an Event of Default, to prosecute such causes of action. Following an Event of Default, Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. TrustorGrantor, immediately upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of the institution of any proceedings relating to condemnation or other taking of or damage or injury to the Mortgaged Property or any portion thereof, or knowledge of any casualty damage to the Mortgaged Property or damage in any other manner, will immediately notify Beneficiary in writing. Beneficiary, in its sole discretion, Beneficiary may participate in any such proceedings and may join Trustor Grantor in adjusting any loss covered by insurance.
(b) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights . Any compromise or settlement of any cause of action and payments which Trustor may receive or give rise to proceeds in which Trustor may become entitled with respect to the Mortgaged Property in the event of any damage or injury to or a partial condemnation or other partial taking of the Mortgaged Property Beneficiary has an interest shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied, as follows:
(1) Beneficiary shall consent to the application of such payments to the restoration of the Mortgaged Property so damaged if and only if Trustor fulfills all of the following conditions (a breach of any one of which shall constitute an Event of Default under this Deed of Trust and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trust, the Note, or any Related Agreement; (b) that Trustor is not in default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, shall be sufficient in Beneficiary's sole judgment to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which plans, specifications and drawings shall not be substantially modified, changed or revised without the Beneficiary's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and trust company satisfactory subject to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedowns, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or
(2) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in the sole and absolute discretion of Beneficiary (a) to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's expenses incurred in the rebuilding and restoration of the Mortgaged Property. In the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive’s reasonable approval thereof.
(c) If any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of a total condemnation or other total taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction of the indebtedness secured hereby shall be paid to Trustor as its interest may then appear.
(e) Any application of such amounts or any portion thereof to any indebtedness secured hereby shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice.
(f) If any part of any automobile parking areas included within the Mortgaged Property is taken by condemnation or before such areas are otherwise reduced, Trustor shall provide parking facilities in kind, size and location to comply with all Leases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulations.
Appears in 2 contracts
Samples: Credit Agreement (Quixote Corp), Credit Agreement (Quixote Corp)
Condemnation and Insurance Proceeds. (a) The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, are hereby assigned to and shall be paid to Beneficiary. In addition, all causes of action, whether accrued before or after the date of this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, without limitation, including causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security, security and the proceeds thereof shall be paid to Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Trustor, immediately promptly upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of the institution of any proceedings relating to condemnation or other taking of or damage or injury (exceeding $250,000 with respect to damage or injury, provided no Event of Default is then in existence) to the Mortgaged Property or any portion thereof, or knowledge of any casualty damage (exceeding $250,000, provided no Event of Default is then in existence) to the Mortgaged Property, will immediately promptly notify Beneficiary in writing. Beneficiary, in its sole discretion, Beneficiary may participate in any such proceedings and may join Trustor in adjusting any loss covered by insurance.
(b) . All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property or any part thereof exceeding $250,000 (or, if an Event of Default is then in the event existence, all such compensation, awards, proceeds, damages, insurance recoveries, rights of action and payments) with respect to any damage or injury to or a partial condemnation or other partial taking of the Mortgaged Property one occurrence giving rise thereto shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied, as follows:
(1) Beneficiary shall consent to the application of such payments to the restoration of the Mortgaged Property so damaged if and only if Trustor fulfills all of the following conditions (a breach of any one of which shall constitute an Event of Default under this Deed of Trust and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trust, the Note, or any Related Agreement; (b) that Trustor is not in default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, shall be sufficient in Beneficiary's sole judgment to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which plans, specifications and drawings shall not be substantially modified, changed or revised without the Beneficiary's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and trust company satisfactory to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedowns, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or
(2) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in the sole and absolute discretion of Beneficiary and without regard to the adequacy of its security hereunder, but subject to the provisions of subsection (aD) below with respect to any condemnation proceeds or insurance recoveries resulting from condemnation, damage or injury to the Mortgaged Property, to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby the Obligations in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's Trustor for expenses incurred by it in the rebuilding and repair or restoration of the Mortgaged Property. In the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of a total condemnation or other total taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction of the indebtedness secured hereby shall be paid to Trustor as its interest may then appear.
(e) Any application of such amounts or any portion thereof to the Obligations or any indebtedness secured hereby release of funds by Beneficiary to Trustor shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice.
(f) If any part . In the event of any automobile parking areas included within condemnation or other taking or damage or injury to the Mortgaged Property, if Trustor shall seek to apply any such condemnation proceeds or insurance recoveries to the rebuilding and restoration of the Mortgaged Property is taken by so damaged, then Beneficiary shall make such condemnation or before such areas are otherwise reducedproceeds and insurance recoveries available, providing that Trustor shall provide parking facilities in kind, size and location to comply with have fulfilled all Leases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulations.the following conditions:
Appears in 1 contract
Samples: Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (Crimson Wine Group, LTD)
Condemnation and Insurance Proceeds. (a) Immediately upon obtaining knowledge of the institution of any proceedings for the condemnation or other taking of all or any portion of the Property, or knowledge of any casualty damage to the Property, or damage in any other manner, Trustor shall immediately notify Beneficiary thereof. Trustor hereby authorizes and empowers Beneficiary as attorney-in-fact for Trustor to make proof of loss, to adjust and compromise any claim under the insurance policies covering the Property, to appear in and prosecute any action arising from such insurance policies, to collect and receive insurance proceeds, and to deduct therefrom Beneficiary’s expenses incurred in the collection of such proceeds; provided, however, that nothing contained in this Section shall require Beneficiary to incur any expense or take any action hereunder. Trustor hereby authorizes and empowers Beneficiary, at Beneficiary’s option, as attorney-in-fact for Trustor, to commence, appear in, and prosecute, in Beneficiary’s or Trustor’s name, any action or proceeding relating to any condemnation or other taking of all or any part of the Property, whether direct or indirect, and to settle or compromise any claim in connection with such condemnation or other taking. The proceeds of any award payment or claim for damages, direct or consequential, in connection with any condemnation or other taking taking, whether direct or indirect, of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance conveyances in lieu of condemnationthe Property, are hereby assigned to and or any part thereof, shall be paid to Beneficiary. In additionThe foregoing powers of attorney are coupled with an interest and are irrevocable. Trustor hereby authorizes Beneficiary to apply such awards, all causes payments, proceeds or damages relating to condemnation of actionthe Property and insurance covering the Property, whether accrued before or after the date deduction of Beneficiary’s expenses incurred in the collection of such amounts, subject to the requirements of applicable law and the provisions hereof, to restoration or repair of the Property or to payment of the sums secured by this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by . Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, without limitation, causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security, and the proceeds thereof shall be paid under no obligation to Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Trustor, immediately upon obtaining knowledge question the amount of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of the institution of any proceedings relating to condemnation or other taking of or damage or injury to the Mortgaged Property or any portion thereof, will immediately notify Beneficiary in writing. Beneficiary, in its sole discretion, may participate in any such proceedings and may join Trustor in adjusting any loss covered by insurance.
(b) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action action, and payments which Trustor relating to condemnation or other taking of the Property or insured casualty affecting the Property, and may receive or to which Trustor may become entitled with respect to accept the Mortgaged Property same in the event amount in which the same shall be paid. Trustor shall execute such further evidence of assignment of any damage awards, proceeds, damages or injury claims arising in connection with such condemnation or taking or such insurance as Beneficiary may require. Notwithstanding the above, the Beneficiary shall release all insurance and condemnation proceeds to Trustor to be used to reconstruct the improvements on the Property provided that Beneficiary reasonably determines that such restoration, repair or rebuilding is economically feasible. If such insurance proceeds shall be insufficient for such purposes, Trustor shall make up the deficiency. If the Project is subject to a partial condemnation or other partial taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the sametaking, and then shall be applied, as follows:
(1) Beneficiary shall consent to the application of such payments to the restoration of the Mortgaged Property so damaged if and only if Trustor fulfills all of the following conditions (a breach of any one of which shall constitute an Event of Default under this Deed of Trust and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trust, the Note, or any Related Agreement; (b) that Trustor is not in default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, shall be sufficient in Beneficiary's sole judgment to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which plans, specifications and drawings shall not be substantially modified, changed or revised without the Beneficiary's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and trust company satisfactory to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedowns, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or
(2) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in the sole and absolute discretion of Beneficiary (a) to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's expenses incurred in the rebuilding and restoration of the Mortgaged Property. In the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of a total condemnation or other total taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then received therefrom shall be applied to restore the payment Project taken, provided the Beneficiary determines that such restoration is economically feasible and no default exists under the Loan Documents following the expiration of all applicable cure periods. If the Project is subject to a total condemnation, or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as if Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction determines that restoration of the indebtedness secured hereby Project is not feasible following a partial condemnation, or if a default exists then the proceeds from any condemnation award or claim for damages shall be used first to repay all sums under the Note, with the excess, if any, paid to Trustor as its interest may then appearTrustor, subject to the rights of the senior lender.
(e) Any application of such amounts or any portion thereof to any indebtedness secured hereby shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice.
(f) If any part of any automobile parking areas included within the Mortgaged Property is taken by condemnation or before such areas are otherwise reduced, Trustor shall provide parking facilities in kind, size and location to comply with all Leases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulations.
Appears in 1 contract
Samples: Deed of Trust
Condemnation and Insurance Proceeds. (a) The proceeds of any award or claim for damages, direct or consequential, Borrower will promptly notify Lender in connection with any condemnation or other taking of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, are hereby assigned to and shall be paid to Beneficiary. In addition, all causes of action, whether accrued before or after the date of this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, without limitation, causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security, and the proceeds thereof shall be paid to Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Trustor, immediately writing upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of (i) the institution of any proceedings relating to condemnation any Taking or other taking (ii) the occurrence of or any casualty, damage or injury to the Mortgaged Property or Equipment or any portion thereofthereof the restoration of which is estimated by Borrower in good faith to cost more than Two Million Dollars ($2,000,000). In addition, will immediately notify Beneficiary notice of any casualty damage or loss the restoration of which is estimated by Borrower in writing. Beneficiarygood faith to cost more than Two Million Dollars ($2,000,000) shall set forth such good faith estimate of the cost of repairing or restoring such damage or destruction in reasonable detail if the same is then available and, in its sole discretionif not, may participate in any such proceedings and may join Trustor in adjusting any loss covered by insuranceas soon thereafter as it can reasonably be provided.
(b) All In the event of any Taking of or casualty or other damage or injury to the Property, Borrower's right, title and interest in and to all compensation, awards, proceeds, damages, claims, insurance recoveries, causes and rights of action (whether accrued prior to or after the date hereof) and payments which Trustor Borrower may receive or to which Trustor Borrower may become entitled with respect to the Mortgaged Property or any part thereof (collectively, "PROCEEDS"), in connection with any such Taking (subject to the terms of the Operating Agreements and the Leases), casualty or other damage or injury to the Property, or any part thereof, are hereby assigned to and shall be paid to Lender. Notwithstanding anything to the contrary set forth herein or in the Mortgage, to the extent the Proceeds are not in excess of Four Million Dollars ($4,000,000) (the "MINIMUM DEPOSIT AMOUNT") (excluding, solely for purposes of such calculation, Proceeds paid in respect of the insurance described in SECTION 7.1.1(a)(iv) then, provided that no Event of Default shall have occurred and be continuing, Lender hereby consents to and agrees that such Proceeds shall be paid directly to Borrower to be applied to restoration of the Property in accordance with the event terms hereof (provided, however, unless an Event of Default shall have occurred and be continuing, Proceeds paid in respect of the insurance described in SECTION 7.1.1(a)(iv) shall be paid directly to Borrower.) Promptly after the occurrence of any damage or injury destruction to all or any portion of the Property or a partial condemnation or other partial taking Taking of a portion of the Mortgaged Property, Borrower shall commence and diligently prosecute to completion, subject to Excusable Delays, the repair, restoration and rebuilding of the Property (in the case of a Taking, to the extent it is capable of being restored) (such repair, restoration and rebuilding are sometimes hereinafter collectively referred to as the "RESTORATION") so damaged, destroyed or remaining after such Taking, in full compliance with all Legal Requirements and free and clear of any and all Liens except the Permitted Exceptions. Borrower will, in good faith and in a commercially reasonable manner, file and prosecute the adjustment, compromise or settlement of any claim for Proceeds and, subject to Borrower's right to receive the direct payment of any Proceeds up to the Minimum Deposit Amount and, with respect to Proceeds from a Taking, subject to the applicable terms of the Operating Agreements and the Leases and the provisions below, will cause the same to be collected and paid over to Lender, to be held and applied in accordance with the provisions of this Agreement. Borrower hereby irrevocably authorizes Lender to file and prosecute such claim and to collect and to make receipt for any such payment in the event Borrower fails so to act or if an Event of Default shall have occurred and be continuing, and in such case Lender shall be authorized to file such claim and prosecute it with counsel satisfactory to it at the expense of Borrower. Lender shall have the right to approve, such approval not to be unreasonably withheld, any settlement which might result in any Proceeds in excess of the Minimum Deposit Amount, and Borrower will deliver or cause to be delivered to Lender all instruments reasonably requested by Lender to permit such approval. Borrower will pay all costs, fees and expenses reasonably incurred by Lender (including all reasonable attorneys' fees and expenses, the fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration) in connection with the settlement of any claim for insurance in excess of the Minimum Deposit Amount or Proceeds in excess of the Minimum Deposit Amount and seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions and for any of the foregoing expenses, regardless of whether or not the Proceeds exceed the Minimum Deposit Amount, if any Event of Default shall have occurred and be continuing. If any Proceeds are received by Borrower, such Proceeds shall, until the completion of the related Restoration, be held in trust and segregated from other funds of the Borrower to be used to pay for the cost of the Restoration in accordance with the terms hereof, and in the event such Proceeds are in excess of the Minimum Deposit Amount such Proceeds shall, subject to the provisions of the Operating Agreements and the Leases, be forthwith paid to Lender to be held by Lender in a segregated account in trust for Borrower, in each case to be applied or disbursed in accordance with the provisions hereof.
(c) In the event that any Proceeds (other than Proceeds paid with respect to the insurance described in SECTION 7.1(a)(iv) are in excess of the Minimum Deposit Amount, then all Proceeds (other than Proceeds paid with respect to the insurance described in Section 7.1(a)(iv) and except that Proceeds in respect of a Taking shall be subject to the terms and conditions of the Operating Agreements and the Leases) shall be paid over to Beneficiary Lender (a "Casualty/Condemnation Involuntary Prepayment") and shall be applied first as follows: first, toward reimbursement of all Lender's reasonable costs and expenses of Beneficiary in connection with recovery of the sameProceeds and disbursement of the proceeds (as further described below), including, without limitation, reasonable administrative costs and inspection fees, and then then, to the prepayment of the Indebtedness secured hereby (which prepayment shall be appliedmade on the next Payment Date following notice to Lender of an elected or required prepayment hereunder, as followswhich notice Borrower shall promptly give), without prepayment premium or penalty, only if:
(1A) Beneficiary shall consent to the application of such payments to the restoration of the Mortgaged Property so damaged if and only if Trustor fulfills all of the following conditions (a breach of any one of which shall constitute an Event of Default under this Deed of Trust and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trust, the Note, or any Related Agreement; (b) that Trustor Borrower is not in default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, shall be sufficient in Beneficiary's sole judgment to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which plans, specifications and drawings shall not be substantially modified, changed or revised without the Beneficiary's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and trust company satisfactory to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedowns, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or
(2) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in the sole and absolute discretion of Beneficiary (a) to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's expenses incurred in the rebuilding and restoration of the Mortgaged Property. In the event Beneficiary elects under this subsection (2) to make any monies available required to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of a total condemnation or other total taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction of the indebtedness secured hereby shall be paid to Trustor as its interest may then appear.
(e) Any application of such amounts or any portion thereof to any indebtedness secured hereby shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default Operating Agreement or notice.Lease, and
(fB) If any part of any automobile parking areas included within the Mortgaged Property is taken by condemnation or before such areas are otherwise reduced, Trustor shall provide parking facilities in kind, size and location to comply with all Leases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulations.either:
Appears in 1 contract
Condemnation and Insurance Proceeds. (a) The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, are hereby assigned to and shall be paid to Beneficiary. In addition, all causes of action, whether accrued before or after the date of this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, without limitation, causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security, and the proceeds thereof shall be paid to Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Trustor, immediately upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of the institution of any proceedings relating to condemnation or other taking of or damage or injury to the Mortgaged Property or any portion thereof, will immediately notify Beneficiary in writing. Beneficiary, in its sole discretion, may participate in any such proceedings and may join Trustor in adjusting any loss covered by insurance.
(b) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of any damage or injury to or a partial condemnation or other partial taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied, as follows:
(1) Beneficiary shall consent to the application of such payments to the restoration of the Mortgaged Property so damaged if and only if Trustor fulfills all of the following conditions (a breach of any one of which shall constitute an Event of Default under this Deed of Trust and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trust, the Note, or any Related Agreement; (b) that Trustor is not in default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases leases, subleases, licenses and other occupancy agreements in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, shall be sufficient in Beneficiary's sole judgment to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which plans, specifications and drawings shall not be substantially modified, changed or revised without the Beneficiary's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and trust company satisfactory to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedowns, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or
(2) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in the sole and absolute discretion of Beneficiary (a) to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's expenses incurred in the rebuilding and restoration of the Mortgaged Property. In the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of a total condemnation or other total taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction of the indebtedness secured hereby shall be paid to Trustor as its interest may then appear.
(e) Any application of such amounts or any portion thereof to any indebtedness secured hereby shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice.
(f) If any part of any automobile parking areas included within the Mortgaged Property is taken by condemnation or before such areas are otherwise reduced, Trustor shall provide parking facilities in kind, size and location to comply with all Leases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulations.;
Appears in 1 contract
Samples: Construction Deed of Trust (Redwood Mortgage Investors Viii)
Condemnation and Insurance Proceeds. (a) A. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, are hereby assigned to and shall be paid to Beneficiary, for the benefit of Beneficiary. In addition, all causes of action, whether accrued before or after the date of this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by Beneficiary and secured hereby, thereof or in connection with or affecting the Mortgaged Property or any part thereof, including, without limitation, including causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary Beneficiary, for the benefit of Beneficiary, as additional security, security and the proceeds thereof shall be paid to Beneficiary, for the benefit of Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. .
B. Trustor, immediately upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of the institution of any proceedings relating to condemnation or other taking of or damage or injury to the Mortgaged Property or any portion thereof, or knowledge of any casualty damage to the Mortgaged Property or damage in any other manner, will immediately notify Beneficiary in writing. Beneficiary, in its sole discretion, Beneficiary may participate in any such proceedings and may join Trustor in adjusting any loss covered by insurance.
(b) C. All compensation, awards, proceeds, damages, claims, insurance and condemnation recoveries, rights of action and payments which that Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property or any part thereof shall be paid and applied in accordance with the Guaranty. Without limiting the generality of the foregoing, Trustor hereby authorizes, directs and empowers Beneficiary, at its option, on behalf of Trustor, or the successors or assigns of Trustor, to (1) collect and receive such compensation, awards, proceeds, damages, claims, insurance and condemnation recoveries and other payments, give proper receipts and acquittances therefor, and, after deducting expenses of collection, apply the net proceeds as a credit upon any portion, as selected by Beneficiary, of the Secured Obligations, and notwithstanding the fact that the same may not then be due and payable or is otherwise adequately secured, and (2) from and after the occurrence and during the continuance of an Event of Default, adjust, compromise, and settle claims with respect thereto. Any application of such amounts or any portion thereof to the Secured Obligations or any release of funds by Beneficiary to Trustor shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice.
D. In the event of any condemnation or other taking or damage or injury to or a partial condemnation or other partial taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the sameProperty, and then shall be applied, as follows:
(1) Beneficiary shall consent to the application of extent Trustor is permitted by Beneficiary to apply any such payments condemnation proceeds or insurance recoveries to the rebuilding and restoration of the Mortgaged Property so damaged if damaged, then, in addition to the conditions and only if requirements established by Beneficiary regarding the use of such funds, Beneficiary shall not be under any obligation to make such condemnation proceeds and insurance recoveries available unless Trustor fulfills shall have fulfilled all of the following conditions conditions:
(a breach of any one of which i) Trustor shall constitute an Event of Default under this Deed of Trust and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trust, the Note, or any Related Agreement; (b) that Trustor is not be in default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) material lease, license or other occupancy agreement to which Trustor is a party that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering affects the Mortgaged Property for the longer of twelve Property;
(12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (eii) Beneficiary is shall be satisfied that during the period from the time of damage such condemnation proceeds or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds recoveries shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, Trust or, in the event that such condemnation proceeds or insurance recoveries are in Beneficiary's sole judgment insufficient to restore and rebuild the Mortgaged Property, then then,
(a) in the case of damage or injury to the Mortgaged Property, Trustor shall deposit promptly with Beneficiary funds whichthat, together with the insurance or award proceedsrecoveries, shall be sufficient in Beneficiary's sole reasonable credit judgment to restore and rebuild the Mortgaged Property; , and
(gb) in the case of a partial condemnation or other taking, Trustor shall deposit promptly with Beneficiary funds that, together with the condemnation proceeds shall be sufficient in Beneficiary's reasonable credit judgment to restore what remains of the Mortgaged Property to an economically viable condition;
(iii) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which approval shall not be unreasonably withheld or delayed, which plans, specifications and drawings shall provide for the reconstruction of the Mortgaged Property to its original condition (unless otherwise approved by Beneficiary, which approval shall not be substantially modifiedunreasonably withheld or delayed), changed or revised and which plans shall not be modified in any material respect without the Beneficiary's prior written consent; , which consent shall not be unreasonably withheld or delayed;
(hiv) Beneficiary shall also have approved all prime contractors and subcontractors, and together with the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and , which approval Beneficiary shall not unreasonably withhold or delay;
(iv) any and all monies which that are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and or trust company satisfactory to Beneficiary, in accord accordance with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedownsdate-downs, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole reasonable discretion; orand
(2vi) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments Beneficiary shall be applied in satisfied that the sole and absolute discretion of Beneficiary (a) to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's expenses incurred in the rebuilding and restoration quality of the Mortgaged Property. In materials and workmanship of the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part repair or reconstruction of the Mortgaged Property is damaged or destroyed and will be at least equal to the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days quality of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action materials and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of a total condemnation or other total taking workmanship of the Mortgaged Property shall be paid over prior to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction of the indebtedness secured hereby shall be paid to Trustor as its interest may then appeardamage.
(e) Any application of such amounts or any portion thereof to any indebtedness secured hereby shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice.
(f) If any part of any automobile parking areas included within the Mortgaged Property is taken by condemnation or before such areas are otherwise reduced, Trustor shall provide parking facilities in kind, size and location to comply with all Leases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulations.
Appears in 1 contract
Samples: Loan Agreement and Forbearance Agreement (Diversified Corporate Resources Inc)
Condemnation and Insurance Proceeds. (a) The proceeds of any award judgment, award, claim or claim settlement for damages, direct or consequential, in connection with any condemnation or other any taking of or damage or injury to the Mortgaged Trust Property, or any part thereof, or for any conveyance in lieu of condemnation, are hereby assigned to and shall be paid to Beneficiary. In addition, all causes of action, and claims for relief, whether accrued before or after the date of this Deed of Trust, of for all types for damages of damage or injury to the Mortgaged Trust Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by Beneficiary and secured herebywith, or in connection with related to, concerning or affecting the Mortgaged Trust Property or any part thereof, including, including without limitation, limitation causes of action or claims for relief arising in tort or contract and (to the extent of any of the foregoing causes of action or claims for fraud relief arise in tort, only such as are a claim or concealment of a material fact, claims for physical damage or injury to the Trust Property or any portion thereof) are hereby assigned to Beneficiary as additional security, security and the proceeds thereof shall be paid to Beneficiary and Trustor shall not settle or otherwise resolve any such proceedings or execute or deliver any deed in lieu thereof without the prior written consent of Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action or claim for relief and may make any compromise or settlement thereof, and any sums collected as a result thereof shall be paid to Beneficiary. Trustor, immediately upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of the institution of any proceedings relating to condemnation or other taking of or damage or injury to the Mortgaged Trust Property or any portion thereof, will or knowledge of any casualty damage to the Trust Property or any portion thereof or damage in any other manner, shall immediately notify Beneficiary in writing. In the event of a loss or injury covered by insurance, Beneficiary may make proof of loss if not made promptly by Trustor, but Beneficiary shall not be obligated to make such proof of loss by the terms of the contract of insurance, or otherwise, and Beneficiary, in its sole discretion, 's failure to make such proof of loss shall not subject Beneficiary to any liability or affect any of Beneficiary's rights under this Deed of Trust. Beneficiary may participate in any such proceedings and may join Trustor in adjusting any loss covered by insurance.
(b) . Each insurance company concerned is hereby authorized and directed to make payment for such loss directly to Beneficiary, instead of to Trustor, or Trustor and Beneficiary jointly. Trustor agrees to execute such further assignment of any such award, judgment or settlement as Beneficiary may require, and to deliver to Beneficiary all proceeds of such award, judgment or settlement. All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled under this Section 6 with respect to the Mortgaged Trust Property in the event of or any damage or injury to or a partial condemnation or other partial taking of the Mortgaged Property part thereof shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied, as follows:
(1) Beneficiary shall consent to the application of such payments to the restoration of the Mortgaged Property so damaged if and only if Trustor fulfills all of the following conditions (a breach of any one of which shall constitute an Event of Default under this Deed of Trust and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trust, the Note, or any Related Agreement; (b) that Trustor is not in default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, shall be sufficient in Beneficiary's sole judgment to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which plans, specifications and drawings shall not be substantially modified, changed or revised without the Beneficiary's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and trust company satisfactory to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedowns, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or
(2) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in the sole and absolute discretion of Beneficiary (a) and without regard to the adequacy of its security hereunder, to the payment or prepayment with any applicable prepayment premium (without premium) of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's Trustor for expenses incurred by it in the rebuilding and restoration of the Mortgaged Trust Property. In the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of a total condemnation or other total taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction of the indebtedness secured hereby shall be paid to Trustor as its interest may then appear.
(e) Any application of such amounts or any portion thereof to any indebtedness secured hereby or the release of such amounts shall not be construed to cure or waive any default default, notice of default, or notice of default sale hereunder or nor invalidate any act done pursuant to any such default or notice.
(f) . If Beneficiary elects, in its sole and absolute discretion, to make any part of any automobile parking areas included within monies available to Trustor to restore the Mortgaged Property is taken by condemnation or before such areas are otherwise reducedProperty, Trustor shall provide parking facilities proceed forthwith with the completion of construction of the improvements, including the necessary work of restoration in kindaccordance with plans, size specifications and location drawings submitted to comply and approved by Beneficiary; and any monies which Beneficiary so elects to make available for restoration shall be disbursed in accordance with all Leases, and before making standard construction lending practice or in any contract for such substitute parking facilitiesother manner approved by Beneficiary. Notwithstanding paragraph 7, Trustor shall furnish not be required to restore the Property if damaged by reason of an event for which the Beneficiary satisfactory assurance receives condemnation or insurance proceeds unless the Beneficiary elects to make the proceeds or a portion thereof available to Trustor for restoration of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulationsthe Property.
Appears in 1 contract
Condemnation and Insurance Proceeds. (a) Immediately upon obtaining knowledge of the institution of any proceedings for the condemnation or other taking of all or any portion of the Property, or knowledge of any casualty damage to the Property, or damage in any other manner, Trustor shall immediately notify Beneficiary thereof. Subject to the subordination set forth at Section 10 hereof, Trustor hereby authorizes and empowers Beneficiary as attorney in fact for Trustor to make proof of loss, to adjust and compromise any claim under the insurance policies covering the Property, to appear in and prosecute any action arising from such insurance policies, to collect and receive insurance proceeds, and to deduct therefrom Beneficiary’s expenses incurred in the collection of such proceeds; provided, however, that nothing contained in this Section shall require Beneficiary to incur any expense or take any action hereunder. Subject to the subordination set forth at Section 10 hereof, Trustor hereby authorizes and empowers Beneficiary, at Beneficiary’s option, as attorney in fact for Trustor, to commence, appear in and prosecute, in Beneficiary’s or Trustor’s name, any action or proceeding relating to any condemnation or other taking of all or any part of the Property, whether direct or indirect, and to settle or compromise any claim in connection with such condemnation or other taking. The proceeds of any award payment or claim for damages, direct or consequential, in connection with any condemnation or other taking taking, whether direct or indirect, of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance conveyances in lieu of condemnationthe Property, are hereby assigned or any part thereof, if not paid to and a trustor with priority, shall be paid to Beneficiary. In additionTrustor hereby authorizes Beneficiary to apply such awards, all causes payments, proceeds or damages relating to condemnation of actionthe Property and insurance covering the Property, whether accrued before or after the date deduction of Beneficiary’s expenses incurred in the collection of such amounts, subject to the requirements of applicable law and the provisions hereof, to restoration or repair of the Property or to payment of the sums secured by this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by . Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, without limitation, causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security, and the proceeds thereof shall be paid under no obligation to Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Trustor, immediately upon obtaining knowledge question the amount of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of the institution of any proceedings relating to condemnation or other taking of or damage or injury to the Mortgaged Property or any portion thereof, will immediately notify Beneficiary in writing. Beneficiary, in its sole discretion, may participate in any such proceedings and may join Trustor in adjusting any loss covered by insurance.
(b) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action action, and payments which Trustor relating to condemnation or other taking of the Property or insured casualty affecting the Property, and may receive or to which Trustor may become entitled with respect to accept the Mortgaged Property same in the event amount in which the same shall be paid. Trustor shall execute such further evidence of assignment of any damage awards, proceeds damages or injury claims arising in connection with such condemnation or taking or such insurance as Beneficiary may reasonably require. Notwithstanding the above, the Beneficiary shall release all insurance and condemnation proceeds to Trustor to be used to reconstruct the improvements on the Property provided that Beneficiary determines that such restoration, repair or rebuilding is economically feasible. If such insurance proceeds shall be insufficient for such purposes, Trustor shall make up the deficiency. If the Project (as defined in the Agreement) is subject to a partial condemnation or other partial taking of taking, then the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the sameproceeds received therefrom, and then shall be applied, as follows:
(1) Beneficiary shall consent to the application of such payments extent not paid to the restoration of the Mortgaged Property so damaged if and only if Trustor fulfills all of the following conditions (a breach of any one of which shall constitute an Event of Default under this Deed of Trust and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trusttrustor with priority, the Note, or any Related Agreement; (b) that Trustor is not in default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, shall be sufficient in Beneficiary's sole judgment to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which plans, specifications and drawings shall not be substantially modified, changed or revised without the Beneficiary's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and trust company satisfactory to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedowns, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or
(2) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in the sole and absolute discretion of Beneficiary (a) to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's expenses incurred in the rebuilding and restoration of the Mortgaged Property. In the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of a total condemnation or other total taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied to restore the payment Project taken, provided the Beneficiary determines that such restoration is economically feasible and no default exists under the Loan Documents following the expiration of all applicable cure periods. If the Project is subject to a total condemnation, or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as if Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction determines that restoration of the indebtedness secured hereby Housing Project is not feasible following a partial condemnation, or if a default exists then the proceeds from any condemnation award or claim for damages shall be used first to repay all sums under the Note, with the excess, if any, paid to Trustor as its interest may then appearTrustor.
(e) Any application of such amounts or any portion thereof to any indebtedness secured hereby shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice.
(f) If any part of any automobile parking areas included within the Mortgaged Property is taken by condemnation or before such areas are otherwise reduced, Trustor shall provide parking facilities in kind, size and location to comply with all Leases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulations.
Appears in 1 contract
Condemnation and Insurance Proceeds. (a) The proceeds of any award or claim for damages, direct or consequential, Mortgagor will promptly notify the Beneficiary in connection with any condemnation or other taking of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, are hereby assigned to and shall be paid to Beneficiary. In addition, all causes of action, whether accrued before or after the date of this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, without limitation, causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security, and the proceeds thereof shall be paid to Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Trustor, immediately writing upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of (i) the institution of any proceedings relating to condemnation any Taking of, or other taking (ii) the occurrence of or any casualty, damage or injury to to, the Mortgaged Property Properties (or any of them) or Equipment located thereon or any portion thereof, will immediately notify Beneficiary the restora- tion of which is estimated by the Mortgagor in writing. Beneficiary, in its sole discretion, may participate in any such proceedings and may join Trustor in adjusting any loss covered by insurancegood faith to cost more than $500,000.
(b) All In the event of any Taking of, or casualty or other damage or injury to, any Property, or Equipment located thereon, the Mortgagor's right, title and interest in and to all compensation, awards, proceeds, damages, claims, insurance recoveries, causes and rights of action (whether accrued prior to or after the date hereof) and payments which Trustor the Mortgagor may receive or to which Trustor the Mortgagor may become entitled with respect to such Property or any part thereof (collectively, "Proceeds"), in connection with any such Taking, -------- casualty or other damage or injury to any Property, or any part thereof, or Equipment located thereon are hereby assigned to and shall be paid to the Mortgaged Beneficiary on behalf of the Banks. Notwithstanding anything to the contrary set forth in this Mortgage, to the extent such Proceeds are not in excess of $1,000,000 (the "Casualty Amount"), then the Beneficiary hereby consents to and --------------- agrees that such Proceeds are to be paid directly to the Mortgagor to be applied to restoration of such Property in accordance with the event terms hereof and/or the applicable terms of the Lease. Subject to the provisions of Sections 6(c) and 6(d) hereof, promptly after the occurrence of any damage or destruction to all or any portion of such Property or a Taking of a portion of such Property, the Mortgagor shall commence and diligently prosecute to completion the repair, restoration and rebuilding of such Property (in the case of a Taking, to the extent it is capable of being restored) (such repair, restoration and rebuilding are sometimes hereinafter collectively referred to as the "Work") so damaged, ---- destroyed or remaining after such damage or destruction or such Taking in full compliance with all Legal Requirements and free and clear of any and all Liens (subject to Section 7(c) hereof), except the Permitted Exceptions; it being understood, however, that the Mortgagor shall not be obligated to restore such Property to the precise condition of such Property prior to any Taking, casualty or other damage or injury to such Property (and in fact, so long as the Mortgagor applies the Proceeds received upon such Taking or a partial condemnation casualty to such Property to restore the damage or other partial taking injury to such Property and/or to provide another type of improvement that is reasonably expected to benefit such Property, no restoration or rebuilding of the Mortgaged damaged or taken structures must be undertaken), if the Work actually per- formed, if any, or failed to be performed, shall have no material adverse effect on the value of such Property from the value that such Property would have had if the same had been restored to its condition immediately prior to such Taking or casualty. The Mortgagor will, in good faith and in a commercially reasonable manner, file and prosecute the adjustment, compromise or settlement of any claim for insurance or Taking Proceeds and, subject to the Mortgagor's right to receive the direct payment of any Proceeds up to the Casualty Amount subject to the provisions below, will cause the same to be collected and the net Proceeds paid over to the Beneficiary, to be held and applied in accordance with the provisions of this Mortgage. The Mortgagor hereby irrevocably authorizes and empowers the Beneficiary, in the name of the Mortgagor as its true and lawful attorney-in-fact, to file and prosecute such claim and to collect and to make receipt for any such payment, and, in the event the Mortgagor fails so to act for a period of ten (10) days following the Mortgagor's receipt of written notice from the Beneficiary or if an Event of Default shall have occurred and be continuing, then in such case the Beneficiary may file such claim and prosecute it with counsel satisfactory to it at the expense of the Mortgagor. The Beneficiary shall have the right to approve, such approval not to be unreasonably withheld or delayed, any settlement which might result in any Proceeds in excess of the Casualty Amount, and the Mortgagor will deliver to the Beneficiary all instruments reasonably requested by the Beneficiary to permit such approval. The Mortgagor will pay all costs, fees and expenses reasonably and actually incurred by the Beneficiary (including all reasonable attorneys' fees and expenses actually incurred, the reasonable fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration) in connection with the settlement of any claim for insurance or Taking Proceeds and seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions. If any insurance or Taking Proceeds are received by the Mortgagor, such Proceeds shall be received in trust for the Beneficiary (on behalf of the Banks), shall be used to pay for the cost of the Work in accordance with the terms hereof, and in the event such Proceeds are in excess of the Casualty Amount, shall be forthwith paid to the Beneficiary to be held by the Beneficiary in a segregated account in trust for the Mortgagor, in each case to be applied or disbursed in accordance with the provisions hereof.
(c) Upon the occurrence and during the continuance of an Event of Default hereunder, all net Proceeds shall be paid over to the Beneficiary (on behalf of the Banks) and shall be applied first toward reimbursement of all the Beneficiary's reasonable costs and expenses of Beneficiary actually incurred in connection with recovery of the sameProceeds and disbursement of the Proceeds (as further described below), including, without limitation, reasonable administrative costs and inspection fees, and then shall be applied, as follows:
(1) Beneficiary shall consent to the application of such payments to the restoration of the Mortgaged Property so damaged if and only if Trustor fulfills all of the following conditions (a breach of any one of which shall constitute an Event of Default under this Deed of Trust and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trust, the Note, or any Related Agreement; (b) that Trustor is not in default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, shall be sufficient in Beneficiary's sole judgment to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which plans, specifications and drawings shall not be substantially modified, changed or revised without the Beneficiary's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and trust company satisfactory to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedowns, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or
(2) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in the sole and absolute discretion of Beneficiary (a) to the payment or prepayment with any applicable prepayment premium of any indebtedness the Indebtedness secured hereby in such order as the Beneficiary may shall determine, or (b) to the reimbursement of Trustor's expenses incurred in the rebuilding and restoration of the Mortgaged Property. In the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensationIf Proceeds are not paid directly to Mortgagor pursuant to this Section 6 or are not required to be applied towards payment of the Indebtedness pursuant to Section 6(c) above, awardsthen the Beneficiary shall make the Proceeds which it is holding pursuant to the terms hereof available to the Mortgagor (after payment of any reasonable expenses actually incurred by the Beneficiary in connection with the collection thereof), proceeds, damages, claims, insurance recoveries, rights for payment of action and payments which Trustor may receive or to which Trustor may become entitled reimbursement of the Mortgagor's expenses incurred with respect to the Mortgaged Property Work, upon the following terms and subject to the following conditions:
(i) there shall be no continuing Event of Default hereunder;
(ii) if the estimated cost of the Work (as estimated by the architect referred to in clause (iii) below) shall exceed the Proceeds available, the Mortgagor shall at its option either deposit with or deliver to the Beneficiary an amount equal to such excess in the event form of (A) Cash and Cash Equivalents or (B) an unconditional, irrevocable, clean sight draft letter of credit in commercially reasonable form and issued by an Approved Bank; and
(iii) the Beneficiary shall be furnished with an estimate of the cost of the Work accompanied by an Independent Architect's certification as to such costs and appropriate plans and specifications for the Work. The plans and specifications or construction documents shall require that the Work be done in a first-class workmanlike manner at least equivalent to the quality and character of the original Improvements (provided, however, -------- ------- that in the case of a total condemnation or other total taking Taking the restoration of the Mortgaged applicable Property shall be done to the extent reasonably practicable after taking into account the consequences of such Taking), so that upon completion thereof, the applicable Property shall be at least equal in value and general utility to such Property immediately prior to the damage or destruction. The Mortgagor shall restore all Improvements such that when they are fully restored and/or repaired such Improvements and their contemplated use fully comply with all applicable Legal Requirements, including, without limitation, zoning, environmental and building laws, codes, ordinances and regulations.
(e) Disbursement of the Proceeds to the Mortgagor shall be made from time to time (but not more frequently than once in any month) by the Beneficiary as the Work progresses upon receipt by the Beneficiary of (i) an Officers' Certificate dated not more than thirty (30) days prior to the application for such payment, requesting such payment or reimbursement and setting forth the Work performed which is the subject of such request, the parties which performed such Work and the actual cost thereof, and also certifying that such Work and materials are free and clear of Liens (subject to Section 7(c) hereof) other than Permitted Exceptions and (ii) an Independent Architect's certificate certifying performance of the Work together with an estimate of the cost to complete the Work. No payment made prior to the final completion of the Work shall exceed ninety percent (90%) of the value of the Work performed or materials furnished and incorporated into the Improvements from time to time, and at all times the undisbursed balance of said Proceeds, together with all amounts deposited, bonded, guaranteed or otherwise funded pursuant to clause (ii) above, shall be at least sufficient to pay for the cost of completion of the Work, free and clear of Liens (subject to Section 7(c) hereof) other than Permitted Exceptions; final payment shall be made upon receipt by the Beneficiary of a certification by an Independent Architect as to the completion substantially in accordance with the submitted plans and specifications, and the filing of a notice of completion and the receipt by the Beneficiary of final lien waivers (subject to Section 7(c) hereof) from each contractor or materialman. The Beneficiary may at its option require an endorsement to its title insurance policy insuring the continued priority of the Lien of this Mortgage (subject to Permitted Exceptions) as to all sums advanced hereunder, such endorsement to be paid over for by the Mortgagor.
(f) In the event that any condition to Beneficiary and application of Proceeds to the Work contained in Section 6(d) above is not satisfied within a reasonable period of time, then, upon thirty (30) days prior written notice all Proceeds with respect to the Taking of or damage or injury to the Trust Estate in question shall be applied first toward reimbursement of all costs and expenses of by the Beneficiary in connection with recovery of the same, and then shall be applied to the payment or prepayment with of all or any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction portion of the indebtedness Indebtedness secured hereby shall be paid to Trustor as its interest may then appearhereby.
(eg) Any application In the event that, after the completion of the Work and payment of all costs of completion, there are excess Proceeds, then, upon thirty (30) days prior written notice to Mortgagor such amounts excess Proceeds with respect to the Taking of or damage or injury to the Trust Estate shall be applied by the Beneficiary to the payment or prepayment of all or any portion thereof to any indebtedness of the Indebtedness secured hereby shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or noticehereby.
(fh) If any part In the event of a Taking of 100% of any automobile parking areas included within Property, the Mortgaged Property is taken Mortgagor shall prepay the Note, without penalty or premium, in an amount equal to the net Proceeds received by condemnation the Mortgagor for such Property.
(i) In the event of a casualty which damages 100% of any Property, the Mortgagor shall prepay the Note, without penalty or before premium, in an amount equal to the net Proceeds received by the Mortgagor for such areas are otherwise reduced, Trustor shall provide parking facilities in kind, size and location to comply with all LeasesProperty, and before making any contract for such substitute parking facilities, Trustor Property shall furnish to Beneficiary satisfactory assurance be released from the lien and security interests of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulationsthe Loan Documents.
Appears in 1 contract
Condemnation and Insurance Proceeds. (a) The All insurance proceeds of any award or claim for damages, direct or consequential, in connection and condemnation awards with any condemnation or other taking of or damage or injury respect to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, Property are hereby assigned to and shall be paid to Beneficiary. In addition, all causes of action, whether accrued before or after the date of this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, without limitation, causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security. Trustor shall give immediate notice to Beneficiary of any condemnation proceeding, or material loss or damage to the Property in excess of $50,000 (“Material Loss”). Trustor shall have the right to settle and receive the proceeds thereof payable with respect to a condemnation, loss or damage except for a Material Loss. With respect to a Material Loss, all proceeds payable as a result of a condemnation, or material loss or damage shall be paid to Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action applied to repair or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Trustorrestore the Property, immediately upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of the institution of any proceedings relating to condemnation or other taking of or damage or injury to the Mortgaged Property or any portion thereof, will immediately notify Beneficiary in writing. Beneficiary, in its sole discretion, may participate in any such proceedings and may join Trustor in adjusting any loss covered by insurance.
(b) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the provided no event of any damage or injury to or a partial condemnation or other partial taking of the Mortgaged Property shall be paid over to Beneficiary default has occurred and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied, as follows:
(1) Beneficiary shall consent to the application of such payments to the restoration of the Mortgaged Property so damaged if and only if Trustor fulfills all of the following conditions (a breach of any one of which shall constitute an Event of Default under this Deed of Trust and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding continuing under this Deed of Trust, and such repair or restoration is economically feasible and the Notesecurity of this Deed of Trust is not impaired. Upon a Material Loss to such an extent as would make repair uneconomical, or any Related Agreement; (b) that Trustor is not in if a default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that shall have occurred and be continuing at the insurance time of such condemnation or award proceeds shall be sufficient to fully restore and rebuild loss, or if less than two years remains on the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, shall be sufficient in Beneficiary's sole judgment to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding unexpired term of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by BeneficiaryNote, which plansBeneficiary shall, specifications and drawings shall at its option, after deducting its expenses including attorney’s fees, (a) apply all or part of the proceeds against the sums owed under the Loan Documents including the Note whether or not be substantially modified, changed or revised without the Beneficiary's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which the sums are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, actually due or (ii) the Trustee or a title insurance and trust company satisfactory to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedownssecurity is impaired, and without affecting the provision due dates or amount of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or
(2) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in thereafter due under the sole and absolute discretion of Beneficiary (a) to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determineNote, or (b) release all or any part of the proceeds to Trustor, or (c) permit all or any part of the reimbursement of Trustor's expenses incurred in the rebuilding proceeds to be used for repair and restoration of the Mortgaged Property. In the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except Property on such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of a total condemnation or other total taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determineimpose including evidence of sufficient funds to complete the work, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction approval of the indebtedness secured hereby shall be paid to Trustor as its interest may then appearplans and specifications and periodic disbursement of the proceeds during the course of repair and restoration.
(e) Any application of such amounts or any portion thereof to any indebtedness secured hereby shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice.
(f) If any part of any automobile parking areas included within the Mortgaged Property is taken by condemnation or before such areas are otherwise reduced, Trustor shall provide parking facilities in kind, size and location to comply with all Leases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulations.
Appears in 1 contract
Condemnation and Insurance Proceeds. (a) The proceeds of any award or claim for damages, direct or consequential, Borrower will promptly notify Lender in connection with any condemnation or other taking of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, are hereby assigned to and shall be paid to Beneficiary. In addition, all causes of action, whether accrued before or after the date of this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, without limitation, causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security, and the proceeds thereof shall be paid to Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Trustor, immediately writing upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of (i) the institution of any proceedings relating to condemnation any Taking, or other taking (ii) the occurrence of or any casualty, damage or injury to the Mortgaged to, any Property or any portion thereofthereof the restoration of which is estimated by Borrower in good faith to cost more than the Threshold Amount. In addition, will immediately notify Beneficiary notice of any casualty, damage, injury or Taking, the restoration of which is estimated by Borrower in writing. Beneficiarygood faith to cost more than the Threshold Amount, shall set forth such good faith estimate of the cost of repairing or restoring such casualty, damage, injury or Taking in its sole discretionreasonable detail if the same is then available and, may participate in any such proceedings and may join Trustor in adjusting any loss covered by insuranceif not, as soon thereafter as it can reasonably be provided.
(b) All In the event of any Taking of or casualty or other damage or injury to a Property, Borrower's rights, titles and interests in and to all compensation, awards, proceeds, damages, claims, insurance recoveries, causes and rights of action (whether accrued prior to or after the date hereof) and payments which Trustor Borrower may receive or to which Trustor Borrower may become entitled with respect to the Mortgaged Property or any part thereof other than payments received in connection with any liability or loss of rental value or business interruption insurance (collectively, "Proceeds"), in connection with any such Taking of, or casualty or other damage or injury to, any Property or any part thereof are hereby assigned by Borrower to, and shall be paid to, Lender. Such Proceeds shall be applied by Lender to prepay the Note in accordance with the provisions hereof if (i) the Proceeds shall equal or exceed the Allocated Loan Amount with respect to the applicable Property, (ii) an Event of Default shall have occurred and be continuing, (iii) a Total Loss with respect to the applicable Property shall have occurred, (iv) the Work is not capable of being completed before the earlier to occur of (x) the date which is six (6) months prior to the Maturity Date, and (y) the date on which the business interruption insurance carried by Borrower shall expire, (v) the applicable Property is not capable of being restored substantially to its condition prior to such Taking or casualty, or (vi) Borrower is unable to demonstrate to Lender's reasonable satisfaction its continuing ability to pay the Loan. Notwithstanding anything to the contrary set forth in this Mortgage, however, and excluding situations requiring prepayment of the Note, to the extent such Proceeds do not exceed the Threshold Amount, or, if less than the Threshold Amount but when aggregated with all other then unapplied Proceeds with respect to any Property, do not exceed the Threshold Amount in the event aggregate, such Proceeds are to be paid directly to Borrower to be applied to restoration of the Mortgaged Property in accordance with the terms hereof. Subject to the provisions of this Section and Sections and hereof (except that Proceeds paid in respect of the insurance described in Section 6(b) shall be deposited directly into the Operating Account (as defined in the Cash Collateral Agreement), promptly after the occurrence of any damage or destruction to all or any portion of such Property or a Taking of a portion of such Property, in either case which shall not constitute a Total Loss, Borrower shall either cause such Property to be released from the lien of this Mortgage in accordance with Section 38 hereof, or shall commence and diligently prosecute to completion, subject to Excusable Delays, the repair, restoration and rebuilding of such Property (in the case of a partial Taking, to the extent it is capable of being restored) (such repair, restoration and rebuilding are sometimes hereinafter collectively referred to as the "Work") so damaged, destroyed or remaining after such Taking in full compliance with all material Legal Requirements and free and clear of any and all Liens except Permitted Encumbrances; it being understood, however, that Borrower shall not be obligated to restore such Property to the precise condition of the Property prior to any partial Taking of, or casualty or other damage or injury to the Property, if the Work actually performed, if any, or a partial condemnation or other partial taking failed to be performed, shall have no material adverse effect on the value of the Mortgaged Property from the value that the Property would have had if the same had been restored to its condition immediately prior to such Taking or casualty. Borrower will, in good faith and in a commercially reasonable manner, file and prosecute the adjustment, compromise or settlement of any claim for Proceeds and, subject to Borrower's right to receive the direct payment of any Proceeds as provided above, and, with respect to Proceeds from a Total Loss, subject to the provisions below and subject to the applicable terms of the Leases, including any rights of the Tenants thereunder, will cause the same to be paid directly to Lender, to be held and applied in accordance with the provisions of this Mortgage. Except upon the occurrence and during the continuance of an Event of Default, Borrower may settle any insurance claim with respect to Proceeds which does not exceed the Threshold Amount. If an Event of Default shall have occurred and be continuing, or if Borrower fails to file and/or prosecute any insurance claim for a period of fifteen (15) Business Days following Borrower's receipt of written notice from Lender, Borrower hereby irrevocably empowers Lender, in the name of Borrower as its true and lawful attorney-in-fact, to file and prosecute such claim (including settlement thereof) with counsel satisfactory to Lender and to collect and to make receipt for any such payment, all at Borrower's expense (including payment of interest at the Default Rate for any amounts advanced by Lender pursuant to this Section ). In the event of (i) a Total Loss resulting from a casualty, damage or destruction, if either (A) the cost to repair the Property as estimated by the Independent Architect would exceed the Threshold Amount and the restoration of the Property cannot reasonably be completed before the date which is the later to occur of the date of expiration of any business interruption insurance or the date of expiration of any Letter of Credit posted in lieu thereof or in addition thereto and under such circumstances Borrower is not required under the applicable Lease to make Proceeds available for restoration of the Property, or (B) Lender elects not to permit Borrower to restore the Property or (ii) a Total Loss resulting from a Taking, Borrower shall be paid over required to Beneficiary comply with the provisions of Section 6(i) below and Lender shall be applied apply such Proceeds, first toward reimbursement of all Lender's reasonable costs and expenses of Beneficiary in connection with recovery of the sameProceeds (as further described below), including, without limitation, reasonable administrative costs and inspection fees, and then as required by Section 6(i) hereof. Any Proceeds remaining after prepayment in part as set forth in Section 6(i) hereof shall be applied, paid to Borrower or as follows:
(1) Beneficiary shall consent to the application of such payments to the restoration of the Mortgaged Property so damaged if and only if Trustor fulfills all of the following conditions (a breach of any one of which shall constitute it may direct in writing. Whether or not an Event of Default under shall have occurred and be continuing, Lender shall have the right to approve, such approval not to be unreasonably withheld, any settlement which is for Proceeds in excess of the Threshold Amount and Borrower will deliver or cause to be delivered to Lender all instruments reasonably requested by Lender to permit such approval. Borrower will pay all reasonable costs, fees and expenses reasonably incurred by Lender (including all reasonable attorneys' fees and expenses, the reasonable fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration), and interest thereon at the Default Rate to the extent not paid within five (5) Business Days after delivery of a request for reimbursement by Lender, in connection with the settlement of any claim for insurance or Taking Proceeds and seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions. If any Proceeds are received by Borrower and may be retained by Borrower pursuant to this Deed Section 6, such Proceeds shall, until the completion of Trust the related Work, be held in trust for Lender and shall entitle Beneficiary be segregated from other funds of Borrower to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trust, be used to pay for the Note, or any Related Agreement; (b) that Trustor is not in default under any cost of the termsWork in accordance with the terms hereof, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient to restore and rebuild Proceeds exceed the Mortgaged PropertyThreshold Amount, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, such Proceeds shall be sufficient forthwith paid directly to and held by Lender in Beneficiary's sole judgment a segregated account in trust for Borrower, in each case to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed applied or disbursed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which plans, specifications and drawings shall not be substantially modified, changed or revised without the Beneficiary's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and trust company satisfactory to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedowns, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or
(2) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in the sole and absolute discretion of Beneficiary (a) to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's expenses incurred in the rebuilding and restoration of the Mortgaged Property. In the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waiveSection 6.
(c) If In the event that any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten Proceeds (10) days of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled other than Proceeds paid with respect to the Mortgaged Property insurance described in the event of a total condemnation or other total taking Section 6(b)) are in excess of the Mortgaged Property Threshold Amount, then all Proceeds (other than any portion of any Proceeds paid with respect to the insurance described in Section 6(b) which shall be deposited directly into the Operating Account) shall be paid over to Beneficiary Lender and shall be applied first as follows: first, toward reimbursement of all Lender's or its agent's reasonable costs and expenses of Beneficiary in connection with recovery of the sameProceeds and disbursement of the Proceeds (as further described below), including, without limitation, reasonable administrative costs and inspection fees, and then then, to the prepayment of the Indebtedness secured hereby (which prepayment shall be applied to made on the payment next Payment Date occurring after an elected or required prepayment with any applicable hereunder), without prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determineor penalty, until only if:
(i) (A) the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction amount of the indebtedness secured hereby shall be paid Proceeds is equal to Trustor as its interest may then appear.
(e) Any application of such amounts or any portion thereof greater than the outstanding Allocated Loan Amount with respect to any indebtedness secured hereby shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice.
(f) If any part of any automobile parking areas included within the Mortgaged Property is taken by condemnation or before such areas are otherwise reducedProperty, Trustor shall provide parking facilities in kind, size and location to comply with all Leases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulations.or
Appears in 1 contract
Samples: Mortgage, Deed of Trust, Deed to Secure Debt, Security Agreement (Homestead Village Inc)
Condemnation and Insurance Proceeds. (a) The proceeds Each Mortgagor will promptly notify Mortgagee in writing upon obtaining knowledge of (i) the institution of any award proceedings relating to any Taking of, or claim for (ii) the occurrence of any casualty, damage or injury to, the Mortgaged Property or Equipment located thereon or any portion thereof the restoration of which is estimated by the applicable Mortgagor in good faith to cost more than $250,000.
(b) In the event of any Taking of, or casualty or other damage or injury, to the Mortgaged Property, or Equipment located thereon, Mortgagors' right, title and interest in and to all compensation, awards, proceeds, damages, direct claims, insurance recoveries, causes and rights of action (whether accrued prior to or consequentialafter the date hereof) and payments which either Mortgagor may receive or to which either Mortgagor may become entitled with respect to the Mortgaged Property or any part thereof (collectively, "Proceeds"), in connection with any condemnation such Taking, casualty or other taking of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, Equipment located thereon are hereby assigned to and shall be paid to BeneficiaryMortgagee. In additionNotwithstanding anything to the contrary set forth in this Mortgage, to the extent such Proceeds are not in excess of $1,000,000 (the "Casualty Amount"), then Mortgagee hereby consents to and agrees that such Proceeds are to be paid directly to Mortgagors to be applied to restoration of the Mortgaged Property in accordance with the terms hereof. Subject to the provisions of Sections 6(c) and 6(d) hereof, promptly after the occurrence of any damage or destruction to all or any portion of the Mortgaged Property or a Taking of a portion of the Mortgaged Property, Mortgagors shall commence and diligently prosecute to completion the repair, restoration and rebuilding of the Mortgaged Property (in the case of a Taking, to the extent it is capable of being restored) (such repair, restoration and rebuilding are sometimes hereinafter collectively referred to as the "Work") so damaged, destroyed or remaining after such Taking in full compliance with all Legal Requirements and free and clear of any and all Liens except the Permitted Liens; it being understood, however, that Mortgagors shall not be obligated to restore the Mortgaged Property to the precise condition of the Mortgaged Property prior to any Taking, casualty or other damage or injury to the Mortgaged Property, if the Work actually performed, if any, or failed to be performed, shall have no material adverse effect on the value of the Mortgaged Property from the value that the Mortgaged Property would have had if the same had been restored to its condition immediately prior to such taking or casualty. Mortgagors will, in good faith and in a commercially reasonable manner, file and prosecute the adjustment, compromise or settlement of any claim for insurance or Taking Proceeds and, subject to Mortgagors' right to receive the direct payment of any Proceeds up to the Casualty Amount subject to the provisions below, will cause the same to be collected and paid over to Mortgagee, to be held and applied in accordance with the provisions of this Mortgage. Each Mortgagor hereby irrevocably authorizes and empowers Mortgagee, in the name of such Mortgagor as its true and lawful attorney-in-fact, to file and prosecute such claim and to collect and to make receipt for any such payment, and, in the event Mortgagors fail so to act for a period of ten (10) days following Mortgagors' receipt of written notice from Mortgagee or if an Event of Default shall have occurred and be continuing, then in such case Mortgagee may file such claim and prosecute it with counsel satisfactory to it at the expense of Mortgagors. Mortgagee shall have the right to approve, such approval not to be unreasonably withheld, any settlement which might result in any Proceeds in excess of the Casualty Amount, and Mortgagors will deliver or cause to be delivered to Mortgagee all instruments reasonably requested by Mortgagee to permit such approval. Mortgagors will pay all costs, fees and expenses reasonably and actually incurred by Mortgagee (including all reasonable attorneys' fees and expenses actually incurred, the reasonable fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration) in connection with the settlement of any claim for insurance or Taking Proceeds and seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions. If any insurance or Taking Proceeds are received by either Mortgagor, such Proceeds shall be received in trust for Mortgagee, shall be used to pay for the cost of the Work in accordance with the terms hereof, and in the event such Proceeds are in excess of the Casualty Amount shall be forthwith paid to Mortgagee to be held by Mortgagee in a segregated account in trust for Mortgagors in accordance with the provisions of the Cash Collateral Agreement, in each case to be applied or disbursed in accordance with the provisions hereof.
(c) Upon the occurrence and during the continuance of an Event of Default hereunder, all causes Proceeds shall be paid over to Mortgagee and shall be applied first toward reimbursement of actionMortgagee's reasonable costs and expenses actually incurred in connection with recovery of the Proceeds and disbursement of the Proceeds (as further described below), whether accrued before including, without limitation, reasonable administrative costs and inspection fees, and then at Mortgagee's option, to restoration or to the payment or prepayment of the Indebtedness secured hereby in such order as, Mortgagee shall determine.
(d) If Proceeds are not required to be applied towards payment of the Indebtedness pursuant to Section 6(c) above, then Mortgagee shall make the Proceeds which it is holding pursuant to the terms hereof available to Mortgagors (after payment of any reasonable expenses actually incurred by Mortgagee in connection with the collection thereof) for payment of or reimbursement of Mortgagors' expenses incurred with respect to the Work, upon the following terms and subject to the following conditions:
(i) there shall be no continuing Event of Default hereunder;
(ii) if the estimated cost of the Work (as estimated by an Independent Architect) shall exceed the Proceeds available, Mortgagors shall deliver to Mortgagee a Letter of Credit (as defined in the Credit Agreement) or other security satisfactory to Mortgagee;
(iii) Mortgagee shall be furnished with an estimate of the cost of the Work accompanied by an Independent Architect's certification as to such costs and appropriate plans and specifications for the Work and that the Work can be completed by the earlier of (x) the date which is six months prior to the Termination Date (as defined in the Credit Agreement) or (y) the date which is twenty-four months after the date of this Deed of Trustsuch Taking, of all types for damages casualty or other damage or injury to the Mortgaged Property or any part thereofoccurred. The plans and specifications shall require that the Work be done in a first-class workmanlike manner at least equivalent to the quality and character of the original work in the Improvements (provided, or however, that in connection with any transaction financed by funds loaned to Trustor by Beneficiary and secured hereby, or in connection with or affecting the case of a Taking the restoration of the Mortgaged Property or any part shall be done to the extent reasonably practicable after taking into account the consequences of such Taking), so that upon completion thereof, the Mortgaged Property shall be at least equal in value to the Mortgaged Property immediately prior to the damage or destruction. Mortgagors shall restore all Improvements such that when they are fully restored and/or repaired that such Improvements and their contemplated use fully comply with all applicable Legal Requirements including, without limitation, causes zoning, environmental and building laws, codes, ordinances and regulations.
(e) Disbursement of action arising the Proceeds shall be made from time to time (but not more frequently than once in tort any month) by Mortgagee as the Work progresses upon receipt by Mortgagee of (i) an Officers' Certificate dated not more than thirty (30) days prior to the application for such payment, requesting such payment or contract reimbursement and causes setting forth the Work performed which is the subject of action such request, the parties which performed such Work and the actual cost thereof, and also certifying that such Work and materials are free and clear of Liens other than Permitted Liens and (ii) an Independent Architect's certificate certifying performance of the Work together with an estimate of the cost to complete the Work. No payment made prior to the final completion of the Work shall exceed ninety percent (90%) of the value of the Work performed or materials furnished and incorporated into the Improvements from time to time (provided that each trade shall be entitled to payment of its hold-back upon completion of its component of the Work and satisfactory fulfillment of the requirements herein, including delivery of final lien waivers), and at all times the undisbursed balance of said Proceeds together with all amounts deposited, bonded, guaranteed or otherwise funded pursuant to clause (ii) above, shall be at least sufficient to pay for fraud or concealment the cost of completion of the Work, free and clear of Liens other than Permitted Liens; final payment shall be made upon receipt by Mortgagee of a material factcertification by an Independent Architect, are hereby assigned as to Beneficiary as additional securitythe completion substantially in accordance with the submitted plans and specifications, and the proceeds thereof shall be paid to Beneficiaryreceipt by Mortgagee of final lien waivers from each contractor or materialman. Beneficiary Mortgagee may at its option appear in and prosecute in require an endorsement to its own name title insurance policy insuring the continued priority of the Lien of this Mortgage (subject to Permitted Liens) as to all sums advanced hereunder, such endorsement to be paid for by Mortgagors.
(f) In the event that any action or proceeding condition to enforce any such cause application of action and may make any compromise or settlement thereof. Trustor, immediately upon obtaining knowledge of any casualty damage Proceeds to the Mortgaged Property or damage Work contained in any other manner in excess of $25,000.00 or knowledge of Section 6(d) above is not satisfied, then Mortgagee may, upon thirty (30) days prior written notice to Mortgagors, apply all Proceeds with respect to the institution of any proceedings relating to condemnation or other taking Taking of or damage or injury to the Mortgaged Property or any portion thereof, will immediately notify Beneficiary in writing. Beneficiary, in its sole discretion, may participate in any such proceedings and may join Trustor in adjusting any loss covered by insurance.
(b) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of any damage or injury to or a partial condemnation or other partial taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied, as follows:
(1) Beneficiary shall consent to the application of such payments to the restoration of the Mortgaged Property so damaged if and only if Trustor fulfills all of the following conditions (a breach of any one of which shall constitute an Event of Default under this Deed of Trust and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trust, the Note, or any Related Agreement; (b) that Trustor is not in default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, shall be sufficient in Beneficiary's sole judgment to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which plans, specifications and drawings shall not be substantially modified, changed or revised without the Beneficiary's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and trust company satisfactory to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedowns, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or
(2) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in the sole and absolute discretion of Beneficiary (a) question to the payment or prepayment with of all or any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's expenses incurred in the rebuilding and restoration portion of the Mortgaged PropertyIndebtedness secured hereby. In Notwithstanding the event Beneficiary elects under this subsection (2forego- ing contained in Section 6(d) to make any monies available to restore above, if the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part cost of the Mortgaged Property is damaged or destroyed and Work as estimated by the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the BeneficiaryIndependent Architect's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled certification exceeds $62,500,000 with respect to the Mortgaged Property in 1290 Property, then upon thirty (30) days prior written notice all Proceeds with respect to the event Taking of a total condemnation or other total taking of damage or injury to the Mortgaged Property shall be paid over to Beneficiary and shall 1290 Property, may, at Mortgagee's option, be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied by Mortgagee to the payment or prepayment with of all or any applicable prepayment premium portion of any indebtedness the Indebtedness secured hereby in such order with respect to the 1290 Allocated Loan Amount and if the cost of the Work as Beneficiary may determineestimated by the Independent Architect's certification exceeds $42,500,000 with respect to the 237 Park Property, until then upon thirty (30) days prior written notice all Proceeds with respect to the indebtedness Taking of or damage or injury to the 237 Park Property, may, at Mortgagee's option, be applied by Mortgagee to the payment or prepayment of all or any portion of the Indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction of with respect to the indebtedness secured hereby shall be paid to Trustor as its interest may then appear237 Park Allocated Loan Amount.
(eg) Any application In the event that, after the comple- tion of the Work and payment of all costs of completion, there are excess Proceeds, then upon thirty (30) days prior written notice such amounts excess Proceeds with respect to the Taking of or damage or injury to the Mortgaged Property may be applied by Mortgagee to the payment or pre-payment of all or any portion thereof to any indebtedness of the Indebtedness secured hereby shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or noticehereby.
(fh) If any part In the event of any automobile parking areas included within a Taking of all of the Mortgaged Property is taken by condemnation Property, Mortgagors shall prepay the Notes in full, whether or before such areas not the Proceeds are otherwise reduced, Trustor shall provide parking facilities in kind, size and location to comply with all Leases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulationssufficient.
Appears in 1 contract
Samples: Mortgage Modification, Restatement and Security Agreement (Metropolis Realty Trust Inc)
Condemnation and Insurance Proceeds. (a) The proceeds of any award or claim for damages, direct or consequential, Grantor will promptly notify Beneficiary in connection with any condemnation or other taking of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, are hereby assigned to and shall be paid to Beneficiary. In addition, all causes of action, whether accrued before or after the date of this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, without limitation, causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security, and the proceeds thereof shall be paid to Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Trustor, immediately writing upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of (i) the institution of any proceedings relating to condemnation any Taking, or other taking (ii) the occurrence of or any casualty, damage or injury to the Mortgaged to, any Property or any portion thereofthereof the restoration of which is estimated by Grantor in good faith to cost more than the Individual Threshold Amount. In addition, will immediately notify Beneficiary notice of any casualty, damage, injury or Taking, the restoration of which is estimated by Grantor in writing. Beneficiarygood faith to cost more than the Individual Threshold Amount, shall set forth such good faith estimate of the cost of repairing or restoring such casualty, damage, injury or Taking in its sole discretionreasonable detail if the same is then available and, may participate in any such proceedings and may join Trustor in adjusting any loss covered by insuranceif not, as soon thereafter as it can reasonably be provided.
(b) All In the event of any Taking of or casualty or other damage or injury to any Property, Grantor's rights, titles and interests in and to all compensation, awards, proceeds, damages, claims, insurance recoveries, causes and rights of action (whether accrued prior to or after the date hereof) and payments which Trustor Grantor may receive or to which Trustor Grantor may become entitled with respect to the Mortgaged Trust Estate or any part thereof other than payments received in connection with any liability or loss of rental value or business interruption insurance (collectively, "Proceeds"), in connection with any such Taking of, or casualty or other damage or injury to, any Property or any part thereof are hereby assigned to Beneficiary, and shall be paid to, Beneficiary. Subject to the terms of the Leases, such Proceeds shall be applied by Beneficiary to prepay the Note in accordance with the provisions thereof if (i) the Proceeds shall equal or exceed the Allocated Loan Amount with respect to the applicable Property, (ii) an Event of Default shall have occurred and be continuing, (iii) a Total Loss with respect to the applicable Property shall have occurred, (iv) the Work is not capable of being completed before the earlier to occur of the date which is six (6) months prior to the Maturity Date, and the date on which the business interruption insurance carried by Grantor with respect to the applicable Property shall expire, (v) the applicable Property is not capable of being restored substantially to its condition prior to such Taking or casualty, or (vi) as of the date of the expiration of the business interruption insurance carried by Grantor with respect to the applicable Property, more than twenty percent (20%) of Leases at the Property have been terminated or have expired since the date of the Taking, casualty or damage to the Property. Notwithstanding anything to the contrary set forth in this Mortgage, however, and excluding situations requiring prepayment of the Note, to the extent such Proceeds with respect to such Property do not exceed the greater of $250,000 and ten percent (10%) of the Allocated Loan Amount, and to the extent such Proceeds with respect to the Property located at Easton, Pennsylvania do not exceed $500,000 (each, the "Casualty Amount"), or, if less than the Casualty Amount but when aggregated with all other then unapplied Proceeds with respect to any Property, do not exceed $2,000,000 in the event aggregate (the "Aggregate Casualty Amount"), such Proceeds are to be paid directly to Grantor to be applied to restoration of the Trust Estate in accordance with the terms hereof. Subject to the provisions of this Section 6(b) and Sections 6(d) and 6(g) hereof (except that Proceeds paid in respect of the insurance described in Section 6(a)(iv) shall be deposited directly into the Operating Account (as defined in the Cash Collateral Agreement), promptly after the occurrence of any damage or destruction to all or any portion of such Property or a Taking of a portion of such Property, in either case which shall not constitute a Total Loss, Grantor shall either cause such Property to be released from the lien of this Mortgage in accordance with Section 38 hereof, or shall commence and diligently prosecute to completion, subject to Excusable Delays, the repair, restoration and rebuilding of such Property (in the case of a partial Taking, to the extent it is capable of being restored) (such repair, restoration and rebuilding are sometimes hereinafter collectively referred to as the "Work") so damaged, destroyed or remaining after such Taking in full compliance with all material Legal Requirements and free and clear of any and all Liens except Permitted Encumbrances; it being understood, however, that Grantor shall not be obligated to restore such Property to the precise condition of such Property prior to any partial Taking of, or casualty or other damage or injury to such Property, if the Work actually performed, if any, or failed to be performed, shall have no material adverse effect on the value of such Property from the value that such Property would have had if the same had been restored to its condition immediately prior to such Taking or casualty. Grantor will, in good faith and in a partial condemnation commercially reasonable manner, file and prosecute the adjustment, compromise or other partial taking settlement of any claim for Proceeds and, subject to Grantor's right to receive the direct payment of any Proceeds as provided above, and, with respect to Proceeds from a Total Loss, subject to the provisions below and subject to the applicable terms of the Mortgaged Leases, will cause the same to be paid directly to Beneficiary, to be held and applied in accordance with the provisions of this Mortgage. Except upon the occurrence and during the continuance of an Event of Default, Grantor may settle any insurance claim with respect to Proceeds which does not exceed the Casualty Amount. If an Event of Default shall have occurred and be continuing, or if Grantor fails to file and/or prosecute any insurance claim for a period of thirty (30) Business Days following Grantor's receipt of written notice from Beneficiary, Grantor hereby irrevocably empowers Beneficiary, in the name of Grantor as its true and lawful attorney-in-fact, to file and prosecute such claim (including settlement thereof) with counsel satisfactory to Beneficiary and to collect and to make receipt for any such payment, all at Grantor's expense (including payment of interest at the Default Rate for any amounts advanced by Beneficiary pursuant to this Section 6 (b). In the event of (i) a Total Loss resulting from a casualty, damage or destruction, if either (A) the cost to repair the Property as estimated by the Independent Architect would exceed the Casualty Amount and the restoration of the Property cannot reasonably be completed before the date which is the later to occur of the date of expiration of any business interruption insurance or the date of expiration of any Letter of Credit posted in lieu thereof or in addition thereto and under such circumstances Grantor is not required under any Lease to make Proceeds available for restoration of the Property, or (B) Beneficiary elects not to permit Grantor to restore such Property or (ii) a Total Loss resulting from a Taking, Grantor shall be required to comply with the provisions of Section 6(j) below and Beneficiary shall apply such Proceeds, first toward reimbursement of Beneficiary's reasonable costs and expenses in connection with recovery of the Proceeds (as further described below), including, without limitation, reasonable administrative costs and inspection fees, and then as required by Section 6(j) hereof. Any Proceeds remaining after prepayment in part as set forth in Section 6(j) hereof shall be paid to Grantor or as it may direct in writing. Whether or not an Event of Default shall have occurred and be continuing, Beneficiary shall have the right to approve, such approval not to be unreasonably withheld, any settlement which might result in any Proceeds in excess of the Casualty Amount and Grantor will deliver or cause to be delivered to Beneficiary all instruments reasonably requested by Beneficiary to permit such approval. Grantor will pay all reasonable costs, fees and expenses reasonably incurred by Beneficiary (including all reasonable attorneys' fees and expenses, the reasonable fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration), and interest thereon at the Default Rate to the extent not paid within five (5) Business Days after delivery of a request for reimbursement by Beneficiary, in connection with the settlement of any claim for insurance or Taking Proceeds and seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions. If any Proceeds are received by Grantor and may be retained by Grantor pursuant to this Section 6, such Proceeds shall, until the completion of the related Work, be held in trust for Beneficiary and shall be segregated from other funds of Grantor to be used to pay for the cost of the Work in accordance with the terms hereof, and in the event such Proceeds exceed the Casualty Amount, such Proceeds shall be forthwith paid directly to and held by Beneficiary in a segregated account in trust for Grantor, in each case to be applied or disbursed in accordance with this Section 6.
(c) In the event that any Proceeds (other than Proceeds paid with respect to the insurance described in Section 5(a)(iv)) are in excess of the Casualty Amount, then all Proceeds (other than any portion of any Proceeds paid with respect to the insurance described in Section 5(a)(iv) which shall be deposited directly into the Operating Account) shall be paid over to Beneficiary and shall be applied first as follows: first, toward reimbursement of all Beneficiary's or its agent's reasonable costs and expenses of Beneficiary in connection with recovery of the sameProceeds and disbursement of the Proceeds (as further described below), including, without limitation, reasonable administrative costs and inspection fees, and then then, to the prepayment of the Indebtedness secured hereby (which prepayment shall be appliedmade on the next Payment Date occurring after an elected or required prepayment hereunder), as followswithout prepayment premium or penalty, only if:
(1) Beneficiary shall consent to the application of such payments to the restoration of the Mortgaged Property so damaged if and only if Trustor fulfills all of the following conditions (a breach of any one of which shall constitute an Event of Default under this Deed of Trust and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trust, the Note, or any Related Agreement; (b) that Trustor is not in default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, shall be sufficient in Beneficiary's sole judgment to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which plans, specifications and drawings shall not be substantially modified, changed or revised without the Beneficiary's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and trust company satisfactory to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedowns, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or
(2A) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in the sole and absolute discretion of Beneficiary (a) to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's expenses incurred in the rebuilding and restoration of the Mortgaged Property. In the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive Proceeds is equal to or to which Trustor may become entitled with respect to greater than the Mortgaged Property in the event of a total condemnation or other total taking outstanding principal amount of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the sameNote, and then shall be applied to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction of the indebtedness secured hereby shall be paid to Trustor as its interest may then appear.
(e) Any application of such amounts or any portion thereof to any indebtedness secured hereby shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice.
(f) If any part of any automobile parking areas included within the Mortgaged Property is taken by condemnation or before such areas are otherwise reduced, Trustor shall provide parking facilities in kind, size and location to comply with all Leases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulations.or
Appears in 1 contract
Condemnation and Insurance Proceeds. (a) The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, are hereby assigned to and shall be paid to Beneficiary. In addition, all causes of action, whether accrued before or after the date of this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, without limitation, causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security, and the proceeds thereof shall be paid to Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Trustor, immediately upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of the institution of any proceedings relating to condemnation or other taking of or damage or injury to the Mortgaged Property or any portion thereof, will immediately notify Beneficiary in writing. Beneficiary, in its sole discretion, may participate in any such proceedings and may join Trustor in adjusting any loss covered by insurance.
(b) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of any damage or injury to or a partial condemnation or other partial taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied, as follows:
(1) Beneficiary shall consent to the application of such payments to the restoration of the Mortgaged Property so damaged if and only if Trustor fulfills all of the following conditions (a breach of any one of which shall constitute an Event of Default under this Deed of Trust and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trust, the Note, or any Related Agreement; (b) that Trustor is not in default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases leases, subleases, licenses and other occupancy agreements in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, shall be sufficient in Beneficiary's sole judgment to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which plans, specifications and drawings shall not be substantially modified, changed or revised without the Beneficiary's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and trust company satisfactory to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedowns, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or
(2) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in the sole and absolute discretion of Beneficiary (a) to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's expenses incurred in the rebuilding and restoration of the Mortgaged Property. In the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of a total condemnation or other total taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction of the indebtedness secured hereby shall be paid to Trustor as its interest may then appear.
(e) Any application of such amounts or any portion thereof to any indebtedness secured hereby shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice.
(f) If any part of any automobile parking areas included within the Mortgaged Property is taken by condemnation or before such areas are otherwise reduced, Trustor shall provide parking facilities in kind, size and location to comply with all Leasesleases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulations.
Appears in 1 contract
Condemnation and Insurance Proceeds. (a) The proceeds of any award or claim for damages, direct or consequential, Bxxxxxxx will promptly notify Lxxxxx in connection with any condemnation or other taking of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, are hereby assigned to and shall be paid to Beneficiary. In addition, all causes of action, whether accrued before or after the date of this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, without limitation, causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security, and the proceeds thereof shall be paid to Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Trustor, immediately writing upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of (i) the institution of any proceedings relating to condemnation any Taking (whether material or immaterial) of, or (ii) the occurrence of any casualty, damage or injury to, the Property or any portion thereof the restoration of which is estimated by Borrower in good faith to cost more than the Casualty Amount. In addition, each such notice shall set forth such good faith estimate of the cost of repairing or restoring such casualty, damage, injury or Taking in reasonable detail if the same is then available and, if not, as soon thereafter as it can reasonably be provided. In the event of any Taking of or any casualty or other taking of or damage or injury to the Mortgaged Property or any portion thereofProperty, will immediately notify Beneficiary Borrower's right, title and interest in writing. Beneficiary, in its sole discretion, may participate in any such proceedings and may join Trustor in adjusting any loss covered by insurance.
(b) All to all compensation, awards, proceeds, damages, claims, insurance recoveries, causes and rights of action (whether accrued prior to or after the date hereof) and payments which Trustor Borrower may receive or to which Trustor Borrower may become entitled with respect to the Mortgaged Property or any part thereof other than payments received in connection with any liability or loss of rental value or business interruption insurance (collectively, "Proceeds"), in connection with any such Taking of, or casualty or other damage or injury to, the Property or any part thereof are hereby assigned by Borrower to and, except as otherwise herein provided, shall be paid to the Lender. Borrower will, in good faith and in a commercially reasonable manner, file and prosecute the adjustment, compromise or settlement of any claim for Proceeds and, subject to Borrower's right to receive the direct payment of any Proceeds as herein provided, will cause the same to be paid directly to Lender to be held and applied in accordance with the provisions of this Mortgage. Except upon the occurrence and during the continuance of an Event of Default, Borrower may settle any insurance claim with respect to Proceeds which does not exceed the Casualty Amount. Whether or not an Event of Default shall have occurred and be continuing, Lender shall have the right to approve, such approval not to be unreasonably withheld, any settlement which might result in any Proceeds in excess of the Casualty Amount and Borrower will deliver or cause to be delivered to Lender all instruments reasonably requested by Lender to permit such approval. Borrower will pay all reasonable out-of-pocket costs, fees and expenses reasonably incurred by Lxxxxx (including all reasonable attorneys' fees and expenses, the reasonable fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration), and interest thereon at the Default Rate to the extent not paid within ten (10) Business Days after delivery of a request for reimbursement by Lxxxxx, in connection with the settlement of any claim for Proceeds and seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions. If any Proceeds are received by Borrower and may be retained by Borrower pursuant to this Section 6, such Proceeds shall, until the completion of the related Work, be held in trust for Lender and shall be segregated from other funds of Borrower to be used to pay for the cost of the Work in accordance with the terms hereof, and in the event such Proceeds exceed the Casualty Amount, such Proceeds shall be forthwith paid directly to and held by Lender in a segregated account in trust for Bxxxxxxx, in each case to be applied or disbursed in accordance with this Section 6. If an Event of Default shall have occurred and be continuing, or if Borrower fails to file and/or prosecute any damage insurance claim for a period of fifteen (15) Business Days following Borrower's receipt of written notice from Lxxxxx, Borrower hereby irrevocably empowers Lender, in the name of Borrower as its true and lawful attorney-in-fact, to file and prosecute such claim (including settlement thereof) with counsel satisfactory to Lender and to collect and to make receipt for any such payment, all at Borrower's expense (including payment of interest at the Default Rate for any amounts advanced by Lender pursuant to this Section 6(b)). Notwithstanding anything to the contrary set forth in this Mortgage, however, and excluding situations requiring prepayment of the Note, to the extent any Proceeds (either singly or injury when aggregated with all other then unapplied Proceeds with respect to or a partial condemnation or other partial taking the Property) do not exceed $3,000,000 (the "Casualty Amount"), such Proceeds are to be paid directly to Borrower to be applied to restoration of the Mortgaged Property in accordance with the terms hereof (except that Proceeds paid in respect of the insurance described in Section 5(a)(iv) shall be deposited directly to the Operating Account). Except as otherwise herein expressly provided in this Mortgage, if (i) the Proceeds shall equal or exceed the Loan Amount, (ii) an Event of Default shall have occurred and be continuing, (iii) a Total Loss with respect to the Property shall have occurred, (iv) the Proceeds shall equal or exceed the Threshold Amount and the Work is not capable of being completed before the earlier to occur of the date which is six (6) months prior to the Maturity Date and the date on which the business interruption insurance carried by Borrower with respect to the Property shall expire (the "Cut-Off Date"), unless on or prior to the Cut-Off Date the Borrower shall deliver to the Lender and there shall remain in effect a binding written offer, subject only to customary conditions, of an Approved Bank or such other financial institution or investment bank reasonably satisfactory to Lender duly authorized to originate loans secured by real property located in the State of New York for a loan from such Approved Lender to the Borrower in a principal amount of not less than the then Loan Amount and which shall, in the Lender's reasonable judgment, enable the Borrower to refinance the Loan prior to the Maturity Date, or (v) the Property is not capable of being restored substantially to its condition prior to such Taking or casualty and such incapacity shall have a Material Adverse Effect on the value of the Property, then all Proceeds shall be paid over to Beneficiary Lender (if not paid directly to Lender) and shall be applied first toward any Proceeds remaining after reimbursement of all Lender's or its agent's reasonable out-of-pocket costs and expenses of Beneficiary actually incurred in connection with recovery of the sameany such Proceeds (including, without limitation, reasonable out-of-pocket administrative costs and then inspection fees) shall be appliedapplied by Lender to prepay the Note in accordance with the provisions thereof. Except as otherwise herein expressly provided in this Mortgage, as follows:
(1) Beneficiary shall consent promptly after the occurrence of any damage or destruction to the application of such payments to the restoration all or any portion of the Mortgaged Property so damaged if and only if Trustor fulfills all or a Taking of a portion of the following conditions (Property which, in either case, shall not constitute a breach of any one of which Total Loss, Borrower shall constitute an Event of Default under this Deed of Trust commence and shall entitle Beneficiary diligently prosecute to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trustcompletion, subject to Excusable Delays, the Noterepair, or any Related Agreement; (b) that Trustor is not in default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property (in the case of a partial Taking, to the extent it is completed capable of being restored) (such repair, restoration and rebuilding are sometimes hereinafter collectively referred to as the "Gap PeriodWork") Trustor's net income from (1) so damaged, destroyed or remaining after such Taking in full compliance with all leases, subleases, licenses material Legal Requirements and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of any and all liens Liens except Permitted Encumbrances; it being understood, however, that Borrower shall not be obligated to restore the lien Property to the precise condition of the Property prior to any partial Taking of, or casualty or other damage or injury to the Property, if the Work actually performed, if any, or failed to be performed, shall have no Material Adverse Effect on the value of the Property from the value that the Property would have had if the same had been restored to its condition immediately prior to such Taking or casualty. Subject to Borrower's rights pursuant to Section 34 to cause the Property to be released from the Lien of this Deed of TrustMortgage, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient Borrower shall be obligated to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance Property suffering a casualty or award proceeds, shall be sufficient in Beneficiary's sole judgment which has been subject to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed a partial Taking in accordance with plans and specifications and drawings submitted the provisions of this Section 6, whether or not the Proceeds shall be sufficient, provided that, if applicable, the Proceeds shall be made available to and approved Borrower by BeneficiaryLender in accordance with this Mortgage. If Proceeds are not required to be applied toward payment of the Indebtedness pursuant to the terms hereof, then Lender shall make the Proceeds which plans, specifications and drawings shall it is holding pursuant to the terms hereof (after payment of any reasonable out-of-pocket expenses actually incurred by Lxxxxx in connection with the collection thereof plus interest thereon at the Default Rate (from the date advanced through the date of reimbursement) to the extent the same are not be substantially modified, changed paid within ten (10) Business Days after request for reimbursement by Lxxxxx) available to Borrower for payment of or revised without reimbursement of Bxxxxxxx's or the Beneficiaryapplicable Tenant's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into expenses incurred with respect to the restoration Work, upon the terms and rebuildingsubject to the conditions set forth below and in Section 6(f) hereof: at the time of loss or damage or at any time thereafter while Borrower is holding any portion of the Proceeds, there shall be no continuing Event of Default hereunder; if the estimated cost of the Work (as estimated by the Independent Architect referred to in clause (iii) below) shall exceed the Proceeds and the Casualty Amount, Borrower shall, at its option (within a reasonable period of time after receipt of such estimate) either deposit with or deliver to Lender (and, if the Loan is the subject of a Securitization, promptly following any such deposit or delivery, Borrower shall provide written notice of same to the Rating Agencies) (A) Cash and Cash Equivalents, (B) a Letter or Letters of Credit in an amount equal to the estimated cost of the Work less the Proceeds available, or (C) such other evidence of Borrower's ability to meet such excess costs and which is satisfactory to Lender and, if the Loan is the subject of a Securitization, the Rating Agencies; and Lender shall, within a reasonable period of time prior to request for initial disbursement, be furnished with an estimate of the cost of the Work accompanied by an Independent Architect's certification as to such costs and appropriate plans and specifications for the Work. The plans and specifications shall require that the Work be done in a first-class workmanlike manner at least equivalent to the quality and character of the original work in the Improvements (provided, however, that in the case of a partial Taking, the Property restoration shall be done to the extent reasonably practicable after taking into account the consequences of such partial Taking), so that upon completion thereof, the Property shall be at least equal in value and general utility to the Property prior to the damage or destruction; it being understood, however, that Borrower shall not be obligated to restore the Property to the precise condition of the Property prior to any partial Taking of, or casualty or other damage or injury to, the Property, if the Work actually performed, if any, or failed to be performed, shall have no Material Adverse Effect on the value of the Property from the value that the Property would have had if the same had been restored to its condition immediately prior to such Taking or casualty. Borrower shall restore all Improvements such that when they are fully restored and/or repaired, such Improvements and their contemplated use fully comply with all applicable material Legal Requirements including zoning, environmental and building laws, codes, ordinances and regulations. Disbursement of the Proceeds in Cash or Cash Equivalents to Borrower shall be made from time to time (but not more frequently than once in any month) by Lender but only for so long as no Event of Default shall have occurred and be continuing, as the Work progresses upon receipt by Lender of (i) any an Officer's Certificate dated not more than ten (10) days prior to the application for such payment, requesting such payment or reimbursement and describing the Work performed that is the subject of such request, the parties that performed such Work and the actual cost thereof, and also certifying that such Work and materials are or, upon disbursement of the payment requested to the parties entitled thereto, will be free and clear of Liens other than Permitted Encumbrances and (ii) an Independent Architect's certificate certifying performance of the Work together with an estimate of the cost to complete the Work. No payment made prior to the final completion of the Work, except for payment made to contractors whose Work shall have been fully completed and from which final lien waivers have been received, shall exceed ninety-five percent (95%) of the value of the Work performed and materials furnished and incorporated into the Improvements from time to time, and at all monies which are made available times the undisbursed balance of said Proceeds together with all amounts deposited, bonded, guaranteed or otherwise provided for restoration and rebuilding hereunder pursuant to Section 6(e)(ii) above, shall be disbursed through Beneficiaryat least sufficient to pay for the estimated cost of completion of the Work; final payment of all Proceeds remaining with Lender shall be made upon receipt by Lender of a certification by an Independent Architect, as to the Trustee or a title insurance completion of the Work substantially in accordance with the submitted plans and trust company satisfactory to Beneficiaryspecifications, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly final lien waivers and title insurance datedownsreleases, and the provision filing of payment a notice of completion and performance bonds by Trustorthe expiration of the period provided under the law of the State of Illinois for the filing of mechanic's and materialmen's liens which are entitled to priority as to other creditors, encumbrances and purchasers, as certified pursuant to an Officer's Certificate, and delivery of a certificate of occupancy with respect to the Work, or, if not applicable, an Officer's Certificate to the effect that a certificate of occupancy is not required. If, after the Work is completed and all costs of completion have been paid, there are excess Proceeds, Lender shall apply such excess Proceeds with respect to the Taking of or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or
(2) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in damage or injury to the sole and absolute discretion of Beneficiary (a) Mortgaged Property to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's expenses incurred in the rebuilding and restoration of the Mortgaged Property. In the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of a total condemnation or other total taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction of the indebtedness secured hereby shall be paid to Trustor as its interest may then appear.
(e) Any application of such amounts or any portion thereof to any indebtedness of the Indebtedness secured hereby shall not be construed to cure without penalty or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or noticepremium.
(f) If any part of any automobile parking areas included within the Mortgaged Property is taken by condemnation or before such areas are otherwise reduced, Trustor shall provide parking facilities in kind, size and location to comply with all Leases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulations.
Appears in 1 contract
Samples: Secured Indebtedness Agreement (Parkway Properties Inc)
Condemnation and Insurance Proceeds. (a) The proceeds of any award or claim for damages, direct or consequential, Grantor will promptly notify Beneficiary in connection with any condemnation or other taking of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, are hereby assigned to and shall be paid to Beneficiary. In addition, all causes of action, whether accrued before or after the date of this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, without limitation, causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security, and the proceeds thereof shall be paid to Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Trustor, immediately writing upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of (i) the institution of any proceedings relating to condemnation any Taking, or other taking (ii) the occurrence of or any casualty, damage or injury to the Mortgaged to, any Property or any portion thereofthereof the restoration of which is estimated by Grantor in good faith to cost more than the Individual Threshold Amount. In addition, will immediately notify Beneficiary notice of any casualty, damage, injury or Taking, the restoration of which is estimated by Grantor in writing. Beneficiarygood faith to cost more than the Individual Threshold Amount, shall set forth such good faith estimate of the cost of repairing or restoring such casualty, damage, injury or Taking in its sole discretionreasonable detail if the same is then available and, may participate in any such proceedings and may join Trustor in adjusting any loss covered by insuranceif not, as soon thereafter as it can reasonably be provided.
(b) All In the event of any Taking of or casualty or other damage or injury to any Property, Grantor's rights, titles and interests in and to all compensation, awards, proceeds, damages, claims, insurance recoveries, causes and rights of action (whether accrued prior to or after the date hereof) and payments which Trustor Grantor may receive or to which Trustor Grantor may become entitled with respect to the Mortgaged Trust Estate or any part thereof other than payments received in connection with any liability or loss of rental value or business interruption insurance (collectively, "Proceeds"), in connection with any such Taking of, or -------- casualty or other damage or injury to, any Property or any part thereof are hereby assigned by Grantor to, and shall be paid to, Beneficiary. Such Proceeds shall be applied by Beneficiary to prepay the Note in accordance with the provisions thereof if (i) the Proceeds shall equal or exceed the Allocated Loan Amount with respect to the applicable Property, (ii) an Event of Default shall have occurred and be continuing, (iii) a Total Loss with respect to the applicable Property shall have occurred, (iv) the Work is not capable of being completed before the earlier to occur of the date which is six (6) months prior to the Reset Date (as defined in the event Note), and the date on which the business interruption insurance carried by Grantor with respect to the applicable Property shall expire, (v) the applicable Property is not capable of being restored substantially to its condition prior to such Taking or casualty, or (vi) Grantor is unable to demonstrate to Beneficiary's satisfaction its continuing ability to pay the Loan. Notwithstanding anything to the contrary set forth in this Mortgage, however, and excluding situations requiring prepayment of the Note, to the extent such Proceeds with respect to such Property do not exceed [$500,000] (the "Casualty Amount"), or, if less than the Casualty Amount but when aggregated with all other then unapplied Proceeds with --------------- respect to any Property, do not exceed $4,000,000 in the aggregate, such Proceeds are to be paid directly to Grantor to be applied to restoration of the Trust Estate in accordance with the terms hereof. Subject to the provisions of this Section 6(b) and Sections 6(d) and Section 6(c) hereof (except that ------------ ------------------------------ Proceeds paid in respect of the insurance described in Section 5(a)(iv) shall be ---------------- deposited directly into the Operating Account (as defined in the Cash Collateral Agreement), promptly after the occurrence of any damage or destruction to all or any portion of such Property or a Taking of a portion of such Property, in either case which shall not constitute a Total Loss, Grantor shall either cause such Property to be released from the lien of this Mortgage in accordance with Section 38 hereof, or shall commence and diligently prosecute to completion, ---------- subject to Excusable Delays, the repair, restoration and rebuilding of such Property (in the case of a partial Taking, to the extent it is capable of being restored) (such repair, restoration and rebuilding are sometimes hereinafter collectively referred to as the "Work") so damaged, destroyed or remaining after ---- such Taking in full compliance with all material Legal Requirements and free and clear of any and all Liens except Permitted Encumbrances; it being understood, however, that Grantor shall not be obligated to restore such Property to the precise condition of such Property prior to any partial Taking of, or casualty or other damage or injury to such Property, if the Work actually performed, if any, or failed to be performed, shall have no material adverse effect on the value of such Property from the value that such Property would have had if the same had been restored to its condition immediately prior to such Taking or casualty. Grantor will, in good faith and in a partial condemnation commercially reasonable manner, file and prosecute the adjustment, compromise or other partial taking settlement of any claim for Proceeds and, subject to Grantor's right to receive the direct payment of any Proceeds as provided above, and, with respect to Proceeds from a Total Loss, subject to the provisions below and subject to the applicable terms of the Mortgaged Leases, will cause the same to be paid directly to Beneficiary, to be held and applied in accordance with the provisions of this Mortgage. Except upon the occurrence and during the continuance of an Event of Default, Grantor may settle any insurance claim with respect to Proceeds which does not exceed the Casualty Amount. If an Event of Default shall have occurred and be continuing, or if Grantor fails to file and/or prosecute any insurance claim for a period of fifteen (15) Business Days following Grantor's receipt of written notice from Beneficiary, Grantor hereby irrevocably empowers Beneficiary, in the name of Grantor as its true and lawful attorney-in-fact, to file and prosecute such claim (including settlement thereof) with counsel satisfactory to Beneficiary and to collect and to make receipt for any such payment, all at Grantor's expense (including payment of interest at the Default Rate for any amounts advanced by Beneficiary pursuant to this Section 6(b)). In the event of (i) a ------------- Total Loss resulting from a casualty, damage or destruction, if either (A) the cost to repair the Property as estimated by the Independent Architect would exceed the Casualty Amount and the restoration of the Property cannot reason ably be completed before the date which is the later to occur of the date of expiration of any business interruption insurance or the date of expiration of any Letter of Credit posted in lieu thereof or in addition thereto and under such circumstances Grantor is not required under the applicable Lease to make Proceeds available for restoration of the Property, or (B) Beneficiary elects not to permit Grantor to restore such Property or (ii) a Total Loss resulting from a Taking, Grantor shall be required to comply with the provisions of Section 6(j) below and Beneficiary shall apply such Proceeds, first toward ------------ reimbursement of Beneficiary's reasonable costs and expenses in connection with recovery of the Proceeds (as further described below), including, without limitation, reasonable administrative costs and inspection fees, and then as required by Section 6(j) hereof. Any Proceeds remaining after prepayment in ------------ part as set forth in Section 6(j) hereof shall be paid to Grantor or as it may ------------ direct in writing. Whether or not an Event of Default shall have occurred and be continuing, Beneficiary shall have the right to approve, such approval not to be unreasonably withheld, any settlement which might result in any Proceeds in excess of the Casualty Amount and Grantor will deliver or cause to be delivered to Beneficiary all instruments reasonably requested by Beneficiary to permit such approval. Grantor will pay all reasonable costs, fees and expenses reasonably incurred by Beneficiary (including all reasonable attorneys' fees and expenses, the reasonable fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration), and interest thereon at the Default Rate to the extent not paid within five (5) Business Days after delivery of a request for reimbursement by Beneficiary, in connection with the settlement of any claim for insurance or Taking Proceeds and seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions. If any Proceeds are received by Grantor and may be retained by Grantor pursuant to this Section 6, such Proceeds shall, until the completion of the related Work, be --------- held in trust for Beneficiary and shall be segregated from other funds of Grantor to be used to pay for the cost of the Work in accordance with the terms hereof, and in the event such Proceeds exceed the Casualty Amount, such Proceeds shall be forthwith paid directly to and held by Beneficiary in a segregated account in trust for Grantor, in each case to be applied or disbursed in accordance with this Section 6. ---------
(c) In the event that any Proceeds (other than Proceeds paid with respect to the insurance described in Section 5(a)(iv)) are in excess of the ----------------- Threshold Amount, then all Proceeds (other than any portion of any Proceeds paid with respect to the insurance described in Section 5(a)(iv) which shall be ---------------- deposited directly into the Operating Account) shall be paid over to Beneficiary and shall be applied first as follows: first, toward reimbursement of all Beneficiary's or its agent's reasonable costs and expenses of Beneficiary in connection with recovery of the sameProceeds and disbursement of the Proceeds (as further described below), including, without limitation, reasonable administrative costs and inspection fees, and then then, to the prepayment of the Indebtedness secured hereby (which prepayment shall be appliedmade on the next Payment Date occurring after an elected or required prepayment hereunder), as followswithout prepayment premium or penalty, only if:
(1) Beneficiary shall consent to the application of such payments to the restoration of the Mortgaged Property so damaged if and only if Trustor fulfills all of the following conditions (a breach of any one of which shall constitute an Event of Default under this Deed of Trust and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trust, the Note, or any Related Agreement; (b) that Trustor is not in default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, shall be sufficient in Beneficiary's sole judgment to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which plans, specifications and drawings shall not be substantially modified, changed or revised without the Beneficiary's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and trust company satisfactory to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedowns, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or
(2A) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in the sole and absolute discretion of Beneficiary (a) to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's expenses incurred in the rebuilding and restoration of the Mortgaged Property. In the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive Proceeds is equal to or to which Trustor may become entitled with respect to greater than the Mortgaged Property in the event of a total condemnation or other total taking outstanding principal amount of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the sameNote, and then shall be applied to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction of the indebtedness secured hereby shall be paid to Trustor as its interest may then appear.
(e) Any application of such amounts or any portion thereof to any indebtedness secured hereby shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice.
(f) If any part of any automobile parking areas included within the Mortgaged Property is taken by condemnation or before such areas are otherwise reduced, Trustor shall provide parking facilities in kind, size and location to comply with all Leases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulations.or
Appears in 1 contract
Condemnation and Insurance Proceeds. (a) The proceeds of any award or claim for damages, direct or consequential, Mortgagor will promptly notify Mortgagee in connection with any condemnation or other taking of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, are hereby assigned to and shall be paid to Beneficiary. In addition, all causes of action, whether accrued before or after the date of this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, without limitation, causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security, and the proceeds thereof shall be paid to Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Trustor, immediately writing upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of (i) the institution of any proceedings relating to condemnation any Taking, or other taking (ii) the occurrence of or any casualty, damage or injury to the Mortgaged to, any Property or any portion thereofthereof the restoration of which is estimated by Mortgagor in good faith to cost more than the Threshold Amount. In addition, will immediately notify Beneficiary notice of any casualty, damage, injury or Taking, the restoration of which is estimated by Mortgagor in writing. Beneficiarygood faith to cost more than the Threshold Amount, shall set forth such good faith estimate of the cost of repairing or restoring such casualty, damage, injury or Taking in its sole discretionreasonable detail if the same is then available and, may participate in any such proceedings and may join Trustor in adjusting any loss covered by insuranceif not, as soon thereafter as it can reasonably be provided.
(b) All In the event of any Taking of or casualty or other damage or injury to a Property, Mortgagor's rights, titles and interests in and to all compensation, awards, proceeds, damages, claims, insurance recoveries, causes and rights of action (whether accrued prior to or after the date hereof) and payments which Trustor Mortgagor may receive or to which Trustor Mortgagor may become entitled with respect to the Mortgaged Property or any part thereof other than payments received in the event connection with any liability or loss of rental value or business interruption insurance (collectively, "Proceeds"), in connection with any such Taking of, or casualty or other damage or injury to to, any Property or a partial condemnation or other partial taking of the Mortgaged Property any part thereof are hereby assigned by Mortgagor to, and shall be paid over to Beneficiary and to, Mortgagee. Such Proceeds shall be applied first toward reimbursement by Mortgagee to prepay the Note in accordance with the provisions thereof if (i) the Proceeds shall equal or exceed the Allocated Loan Amount with respect to the applicable Property, (ii) an Event of all costs Default shall have occurred and expenses be 36 42 continuing, (iii) a Total Loss with respect to the applicable Property shall have occurred, (iv) the Work is not capable of Beneficiary being completed before the earlier to occur of (x) the date which is six (6) months prior to the Maturity Date, and (y) the date on which the business interruption insurance carried by Mortgagor shall expire, (v) the applicable Property is not capable of being restored substantially to its condition prior to such Taking or casualty, or (vi) Mortgagor is unable to demonstrate to Mortgagee's reasonable satisfaction its continuing ability to pay the Loan. Notwithstanding anything to the contrary set forth in connection with recovery this Mortgage, however, and excluding situations requiring prepayment of the sameNote, and then shall be applied, as follows:
(1) Beneficiary shall consent to the application of extent such payments Proceeds do not exceed the Threshold Amount, or, if less than the Threshold Amount but when aggregated with all other then unapplied Proceeds with respect to any Property, do not exceed $8,000,000 in the aggregate, such Proceeds are to be paid directly to Mortgagor to be applied to restoration of the Mortgaged Property so damaged if in accordance with the terms hereof. Subject to the provisions of this Section 6(b) and only if Trustor fulfills all Sections 6(d) and 6(f) hereof (except that Proceeds paid in respect of the following conditions insurance described in Section 6(b) shall be deposited directly into the Operating Account (a breach as defined in the Cash Collateral Agreement), promptly after the occurrence of any one damage or destruction to all or any portion of such Property or a Taking of a portion of such Property, in either case which shall not constitute a Total Loss, Mortgagor shall either cause such Property to be released from the lien of this Mortgage in accordance with Section 38 hereof, or shall commence and diligently prosecute to completion, subject to Excusable Delays, the repair, restoration and rebuilding of such Property (in the case of a partial Taking, to the extent it is capable of being restored) (such repair, restoration and rebuilding are sometimes hereinafter collectively referred to as the "Work") so damaged, destroyed or remaining after such Taking in full compliance with all material Legal Requirements and free and clear of any and all Liens except Permitted Encumbrances; it being understood, however, that Mortgagor shall not be obligated to restore such Property to the precise condition of the Property prior to any partial Taking of, or casualty or other damage or injury to the Property, if the Work actually performed, if any, or failed to be performed, shall have no material adverse effect on the value of the Property from the value that the Property would have had if the same had been restored to its condition immediately prior to such Taking or casualty. Mortgagor will, in good faith and in a commercially reasonable manner, file and prosecute the adjustment, compromise or settlement of any claim for Proceeds and, subject to Mortgagor's right to receive the direct payment of any Proceeds as provided above, and, with respect to Proceeds from a Total Loss, subject to the provisions below and subject to the applicable terms of the Leases, including any rights of the Tenants thereunder, will cause the same to be paid directly to Mortgagee, to be held and applied in accordance with the provisions of this Mortgage. Except upon the occurrence and during the continuance of an Event of Default, Mortgagor may settle any insurance claim with respect to Proceeds which does not exceed the Threshold Amount. If an Event of Default under this Deed of Trust shall have occurred and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trust, the Notebe continuing, or if Mortgagor fails to file and/or prosecute any Related Agreement; insurance claim for a period of fifteen (b15) that Trustor is not in default under any Business Days following Mortgagor's receipt of the termswritten notice from Mortgagee, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, shall be sufficient in Beneficiary's sole judgment to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which plans, specifications and drawings shall not be substantially modified, changed or revised without the Beneficiary's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and trust company satisfactory to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedowns, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or
(2) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in the sole and absolute discretion of Beneficiary (a) to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's expenses incurred in the rebuilding and restoration of the Mortgaged Property. In the event Beneficiary elects under this subsection (2) to make any monies available to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of a total condemnation or other total taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction of the indebtedness secured hereby shall be paid to Trustor as its interest may then appear.
(e) Any application of such amounts or any portion thereof to any indebtedness secured hereby shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default or notice.
(f) If any part of any automobile parking areas included within the Mortgaged Property is taken by condemnation or before such areas are otherwise reduced, Trustor shall provide parking facilities in kind, size and location to comply with all Leases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulations.Mortgagor
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Condemnation and Insurance Proceeds. (a) The proceeds of any award or claim for damages, direct or consequential, Borrower will promptly notify Lender in connection with any condemnation or other taking of or damage or injury to the Mortgaged Property, or any part thereof, or for conveyance in lieu of condemnation, are hereby assigned to and shall be paid to Beneficiary. In addition, all causes of action, whether accrued before or after the date of this Deed of Trust, of all types for damages or injury to the Mortgaged Property or any part thereof, or in connection with any transaction financed by funds loaned to Trustor by Beneficiary and secured hereby, or in connection with or affecting the Mortgaged Property or any part thereof, including, without limitation, causes of action arising in tort or contract and causes of action for fraud or concealment of a material fact, are hereby assigned to Beneficiary as additional security, and the proceeds thereof shall be paid to Beneficiary. Beneficiary may at its option appear in and prosecute in its own name any action or proceeding to enforce any such cause of action and may make any compromise or settlement thereof. Trustor, immediately writing upon obtaining knowledge of any casualty damage to the Mortgaged Property or damage in any other manner in excess of $25,000.00 or knowledge of (i) the institution of any proceedings relating to condemnation any Taking or other taking (ii) the occurrence of or any casualty, damage or injury to the Mortgaged Property or Equipment or any portion thereofthereof the restoration of which is estimated by Borrower in good faith to cost more than Two Million Dollars ($2,000,000). In addition, will immediately notify Beneficiary notice of any casualty damage or loss the restoration of which is estimated by Borrower in writing. Beneficiarygood faith to cost more than Two Million Dollars ($2,000,000) shall set forth such good faith estimate of the cost of repairing or restoring such damage or destruction in reasonable detail if the same is then available and, in its sole discretionif not, may participate in any such proceedings and may join Trustor in adjusting any loss covered by insuranceas soon thereafter as it can reasonably be provided.
(b) All In the event of any Taking of or casualty or other damage or injury to the Property, Borrower's right, title and interest in and to all compensation, awards, proceeds, damages, claims, insurance recoveries, causes and rights of action (whether accrued prior to or after the date hereof) and payments which Trustor Borrower may receive or to which Trustor Borrower may become entitled with respect to the Mortgaged Property or any part thereof (collectively, "PROCEEDS"), in connection with any such Taking (subject to the terms of the Operating Agreements and the Leases), casualty or other damage or injury to the Property, or any part thereof, are hereby assigned to and shall be paid to Lender. Notwithstanding anything to the contrary set forth herein or in the event Mortgage, to the extent the Proceeds are not in excess of Four Million Dollars ($4,000,000) (the "MINIMUM DEPOSIT AMOUNT") (excluding, solely for purposes of such calculation,
(a) (iv) shall be paid directly to Borrower.) Promptly after the occurrence of any damage or injury destruction to all or any portion of the Property or a partial condemnation or other partial taking Taking of a portion of the Mortgaged Property, Borrower shall commence and diligently prosecute to completion, subject to Excusable Delays, the repair, restoration and rebuilding of the Property (in the case of a Taking, to the extent it is capable of being restored) (such repair, restoration and rebuilding are sometimes hereinafter collectively referred to as the "Restoration") so damaged, destroyed or remaining after such Taking, in full compliance with all Legal Requirements and free and clear of any and all Liens except the Permitted Exceptions. Borrower will, in good faith and in a commercially reasonable manner, file and prosecute the adjustment, compromise or settlement of any claim for Proceeds and, subject to Borrower's right to receive the direct payment of any Proceeds up to the Minimum Deposit Amount and, with respect to Proceeds from a Taking, subject to the applicable terms of the Operating Agreements and the Leases and the provisions below, will cause the same to be collected and paid over to Lender, to be held and applied in accordance with the provisions of this Agreement. Borrower hereby irrevocably authorizes Lender to file and prosecute such claim and to collect and to make receipt for any such payment in the event Borrower fails so to act or if an Event of Default shall have occurred and be continuing, and in such case Lender shall be authorized to file such claim and prosecute it with counsel satisfactory to it at the expense of Borrower. Lender shall have the right to approve, such approval not to be unreasonably withheld, any settlement which might result in any Proceeds in excess of the Minimum Deposit Amount, and Borrower will deliver or cause to be delivered to Lender all instruments reasonably requested by Lender to permit such approval. Borrower will pay all costs, fees and expenses reasonably incurred by Lender (including all reasonable attorneys' fees and expenses, the fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration) in connection with the settlement of any claim for insurance in excess of the Minimum Deposit Amount or Proceeds in excess of the Minimum Deposit Amount and seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions and for any of the foregoing expenses, regardless of whether or not the Proceeds exceed the Minimum Deposit Amount, if any Event of Default shall have occurred and be continuing. If any Proceeds are received by Borrower, such Proceeds shall, until the completion of the related Restoration, be held in trust and segregated from other funds of the Borrower to be used to pay for the cost of the Restoration in accordance with the terms hereof, and in the event such Proceeds are in excess of the Minimum Deposit Amount such Proceeds shall, subject to the provisions of the Operating Agreements and the Leases, be forthwith paid to Lender to be held by Lender in a segregated account in trust for Borrower, in each case to be applied or disbursed in accordance with the provisions hereof.
(c) In the event that any Proceeds (other than Proceeds paid with respect to the insurance described in SECTION 7.1(a)(iv) are in excess of the Minimum Deposit Amount, then all Proceeds (other than Proceeds paid with respect to the insurance described in SECTION 7.1(a)(iv) and except that Proceeds in respect of a Taking shall be subject to the terms and conditions of the Operating Agreements and the Leases) shall be paid over to Beneficiary Lender (a "CASUALTY/CONDEMNATION INVOLUNTARY PREPAYMENT") and shall be applied first as follows: first, toward reimbursement of all Lender's reasonable costs and expenses of Beneficiary in connection with recovery of the sameProceeds and disbursement of the proceeds (as further described below), including, without limitation, reasonable administrative costs and inspection fees, and then then, to the prepayment of the Indebtedness secured hereby (which prepayment shall be appliedmade on the next Payment Date following notice to Lender of an elected or required prepayment hereunder, as followswhich notice Borrower shall promptly give), without prepayment premium or penalty, only if:
(1A) Beneficiary shall consent to the application of such payments to the restoration of the Mortgaged Property so damaged if and only if Trustor fulfills all of the following conditions (a breach of any one of which shall constitute an Event of Default under this Deed of Trust and shall entitle Beneficiary to exercise all rights and remedies Beneficiary may have in such event): (a) that no default or Event of Default is then outstanding under this Deed of Trust, the Note, or any Related Agreement; (b) that Trustor Borrower is not in default under any of the terms, covenants and conditions of any of the Leases (hereinafter defined); (c) that the Leases shall continue in full force and effect; (d) that Trustor has in force rental continuation and business interruption insurance covering the Mortgaged Property for the longer of twelve (12) months or the time Beneficiary reasonably estimates will be necessary to complete such restoration and rebuilding; (e) Beneficiary is satisfied that during the period from the time of damage or taking until restoration and rebuilding of the Mortgaged Property is completed (the "Gap Period") Trustor's net income from (1) all leases, subleases, licenses and other occupancy agreements affecting the Mortgaged Property (the "Leases") which may continue without abatement of rent during such Gap Period, plus (2) all Leases in effect during the Gap Period without abatement of rent which Trustor may obtain in substitution for any of the same which did not continue during such Gap Period, plus (3) the proceeds of rental continuation and business interruption insurance, is sufficient to satisfy Trustor's obligations under this Deed of Trust as they come due; (f) Beneficiary is satisfied that the insurance or award proceeds shall be sufficient to fully restore and rebuild the Mortgaged Property free and clear of all liens except the lien of this Deed of Trust, or, in the event that such proceeds are in Beneficiary's sole judgment insufficient to restore and rebuild the Mortgaged Property, then Trustor shall deposit promptly with Beneficiary funds which, together with the insurance or award proceeds, shall be sufficient in Beneficiary's sole judgment to restore and rebuild the Mortgaged Property; (g) construction and completion of restoration and rebuilding of the Mortgaged Property shall be completed in accordance with plans and specifications and drawings submitted to and approved by Beneficiary, which plans, specifications and drawings shall not be substantially modified, changed or revised without the Beneficiary's prior written consent; (h) Beneficiary shall also have approved all prime and subcontractors, and the general contract or contracts the Trustor proposes to enter into with respect to the restoration and rebuilding; and (i) any and all monies which are made available for restoration and rebuilding hereunder shall be disbursed through Beneficiary, the Trustee or a title insurance and trust company satisfactory to Beneficiary, in accord with standard construction lending practice, including, if requested by Beneficiary, monthly lien waivers and title insurance datedowns, and the provision of payment and performance bonds by Trustor, or in any other manner approved by Beneficiary in Beneficiary's sole discretion; or
(2) If less than all of conditions (a) through (i) in subsection (1) above are satisfied, then such payments shall be applied in the sole and absolute discretion of Beneficiary (a) to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, or (b) to the reimbursement of Trustor's expenses incurred in the rebuilding and restoration of the Mortgaged Property. In the event Beneficiary elects under this subsection (2) to make any monies available required to restore the Mortgaged Property, then all of conditions (a) through (i) in subsection (1) above shall apply, except such conditions which Beneficiary, in its sole discretion, may waive.
(c) If any material part of the Mortgaged Property is damaged or destroyed and the loss is not adequately covered by insurance proceeds collected or in the process of collection, Trustor shall deposit, within ten (10) days of the Beneficiary's request therefor, the amount of the loss not so covered.
(d) All compensation, awards, proceeds, damages, claims, insurance recoveries, rights of action and payments which Trustor may receive or to which Trustor may become entitled with respect to the Mortgaged Property in the event of a total condemnation or other total taking of the Mortgaged Property shall be paid over to Beneficiary and shall be applied first toward reimbursement of all costs and expenses of Beneficiary in connection with recovery of the same, and then shall be applied to the payment or prepayment with any applicable prepayment premium of any indebtedness secured hereby in such order as Beneficiary may determine, until the indebtedness secured hereby has been paid and satisfied in full. Any surplus remaining after payment and satisfaction of the indebtedness secured hereby shall be paid to Trustor as its interest may then appear.
(e) Any application of such amounts or any portion thereof to any indebtedness secured hereby shall not be construed to cure or waive any default or notice of default hereunder or invalidate any act done pursuant to any such default Operating Agreement or notice.Lease, and
(fB) If any part of any automobile parking areas included within the Mortgaged Property is taken by condemnation or before such areas are otherwise reduced, Trustor shall provide parking facilities in kind, size and location to comply with all Leases, and before making any contract for such substitute parking facilities, Trustor shall furnish to Beneficiary satisfactory assurance of completion thereof, free of liens and in conformity with all governmental zoning, land use and environmental regulations.either:
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