Common use of Condemnation and Insurance Proceeds Clause in Contracts

Condemnation and Insurance Proceeds. All Condemnation Proceeds, Insurance Proceeds and any interest earned thereon shall be paid over either by the condemning authority, insurance company or escrow agent to Mortgagee and shall be applied first toward reimbursement of the costs and expenses of Mortgagee (including reasonable attorneys' and paralegals' fees), if any, in connection with the recovery of such Proceeds, and then shall be applied in the sole and absolute discretion of Mortgagee and without regard to the adequacy of its security under this Mortgage (A) to the payment or prepayment of all or any portion of the Note including the Prepayment Premium described in the Note; (B) to the reimbursement of expenses incurred by Mortgagee in connection with the restoration of the Property or Collateral; or (C) to the performance of any of the covenants contained in this Mortgage as Mortgagee may determine. Any prepayment of the Note or portion thereof pursuant to Mortgagee's election under this Section shall be subject to the Prepayment Premium described in the Note. Upon any Event of Default by Mortgagor under this Mortgage, all right, title and interest of Mortgagor in and to all any and all insurance policies then in force, including any and all unearned premiums and existing claims, will inure to Mortgagee, which, at its sole option, and as attorney-in-fact for Mortgagor, may then make, settle and give binding acquittances for claims under all such policies, and may assign and transfer such policies or cancel or surrender them, applying any unearned premium in such manner as Mortgagee may elect. The foregoing appointment of Mortgagee as attorney-in-fact for Mortgagor is coupled with an interest, and is irrevocable.

Condemnation and Insurance Proceeds. All Condemnation Proceeds, Insurance Proceeds and any interest earned thereon shall be paid over either by the condemning authority, insurance company or escrow agent to Mortgagee and shall be applied first toward reimbursement of the costs and expenses of Mortgagee (including reasonable attorneys' ’ and paralegals' ’ fees), if any, in connection with the recovery of such Proceeds, and then shall be applied in the sole and absolute discretion of Mortgagee and without regard to the adequacy of its security under this Mortgage or the Related Agreements (A) to the payment or prepayment of all or any portion of the Note including the Prepayment Premium described in the Note, as applicable; (B) to the reimbursement of expenses incurred by Mortgagee in connection with the restoration of the Property or Collateral; or (C) to the performance of any of the covenants contained in this Mortgage or the Related Agreements as Mortgagee may determine. Any prepayment of the Note or portion thereof pursuant to Mortgagee's ’s election under this Section shall be subject to the Prepayment Premium described in the Note. Upon any Event of Default by Mortgagor under this MortgageDefault, all right, title and interest of Mortgagor in and to all any and all insurance policies then in force, including any and all unearned premiums and existing claims, will inure to Mortgagee, which, at its sole option, and as attorney-in-fact for Mortgagor, may then make, settle and give binding acquittances for claims under all such policies, and may assign and transfer such policies or cancel or surrender them, applying any unearned premium in such manner as Mortgagee may elect. The foregoing appointment of Mortgagee as attorney-in-fact for Mortgagor is coupled with an interest, and is irrevocable.

Condemnation and Insurance Proceeds. All Condemnation Proceeds, Insurance Proceeds and any interest earned thereon shall be paid over either by the condemning authority, insurance company or escrow agent to Mortgagee Lender and shall be applied first toward reimbursement of the costs and expenses of Mortgagee Lender (including reasonable attorneys' and paralegals' fees), if any, in connection with the recovery of such Proceeds, and then shall be applied in the sole and absolute discretion of Mortgagee Lender and without regard to the adequacy of its security under this Mortgage Security Deed (A) to the payment or prepayment of all or any portion of the Note including the Prepayment Premium described in the Note; (B) to the reimbursement of expenses incurred by Mortgagee Lender in connection with the restoration of the Property or Collateral; or (C) to the performance of any of the covenants contained in this Mortgage Security Deed as Mortgagee Lender may determine. Any prepayment of the Note or portion thereof pursuant to MortgageeLender's election under this Section shall be subject to the Prepayment Premium described in the Note. Upon any Event of Default by Mortgagor Borrower under this MortgageSecurity Deed, all right, title and interest of Mortgagor Borrower in and to all any and all insurance policies then in force, including any and all unearned premiums and existing claims, will inure to MortgageeLender, which, at its sole option, and as attorneyattomey-in-fact for MortgagorBorrower, may then make, settle and give binding acquittances for claims under all such policies, and may assign and transfer such policies or cancel or surrender them, applying any unearned premium in such manner as Mortgagee Lender may elect. The foregoing appointment of Mortgagee Lender as attorneyattomey-in-fact for Mortgagor Borrower is coupled with an interest, and is irrevocable.

Condemnation and Insurance Proceeds. All Condemnation Proceeds, Insurance Proceeds and any interest earned thereon shall be paid over either by the condemning authority, insurance company or escrow agent to Mortgagee Lender and shall be applied first toward reimbursement of the costs and expenses of Mortgagee Lender (including reasonable attorneys' and paralegals' fees), if any, in connection with the recovery of such Proceeds, and then shall be applied in the sole and absolute discretion of Mortgagee Lender and without regard to the adequacy of its security under this Mortgage Security Deed (A) to the payment or prepayment of all or any portion of the Note including the Prepayment Premium described in the Note; (B) to the reimbursement of expenses incurred by Mortgagee Lender in connection with the restoration of the Property or Collateral; or (C) to the performance of any of the covenants contained in this Mortgage Security Deed as Mortgagee Lender may determine. Any prepayment of the Note or portion thereof pursuant to MortgageeLender's election under this Section shall be subject to the Prepayment Premium described in the Note. Upon any Event of Default by Mortgagor Borrower under this MortgageSecurity Deed, all right, title and interest of Mortgagor Borrower in and to all any and all ail insurance policies then in force, including any and all unearned premiums and existing claims, will inure to MortgageeLender, which, at its sole option, and as attorney-in-fact for MortgagorBorrower, may then make, settle and give binding acquittances for claims under all such policies, and may assign and transfer such policies or cancel or surrender them, applying any unearned premium in such manner as Mortgagee Lender may elect. The foregoing appointment of Mortgagee Lender as attorney-in-fact for Mortgagor Borrower is coupled with an interest, and is irrevocable.

Condemnation and Insurance Proceeds. All Condemnation Proceeds, Insurance Proceeds and any interest earned thereon shall be paid over either by the condemning authority, insurance company or escrow agent to Mortgagee Beneficiary and shall be applied first toward reimbursement of the costs and expenses of Mortgagee Beneficiary (including reasonable attorneys' and paralegals' fees), if any, in connection with the recovery of such Proceeds, and then shall be applied in the sole and absolute discretion of Mortgagee Beneficiary and without regard to the adequacy of its security under this Mortgage Deed of Trust (A) to the payment or prepayment of all or any portion of the Note including the Prepayment Premium described in the Note; (B) to the reimbursement of expenses incurred by Mortgagee Beneficiary in connection with the restoration of the Property or Collateral; or (C) to the performance of any of the covenants contained in this Mortgage Deed of Trust as Mortgagee Beneficiary may determine. Any prepayment of the Note or portion thereof pursuant to MortgageeBeneficiary's election under this Section shall be subject to the Prepayment Premium described in the Note. Upon any Event of Default by Mortgagor Grantor under this MortgageDeed of Trust, all right, title and interest of Mortgagor Grantor in and to all any and all insurance policies then in force, including any and all unearned premiums and existing claims, will inure to MortgageeBeneficiary, which, at its sole option, and as attorney-in-fact for MortgagorGrantor, may then make, settle and give binding acquittances for claims under all such policies, and may assign and transfer such policies or cancel or surrender them, applying any unearned premium in such manner as Mortgagee Beneficiary may elect. The foregoing appointment of Mortgagee Beneficiary as attorney-in-fact for Mortgagor Grantor is coupled with an interest, and is irrevocable.

Condemnation and Insurance Proceeds. All Condemnation (a) Mortgagor will promptly notify Mortgagee in writing upon obtaining knowledge of (i) the institution of any proceedings relating to any Taking or (ii) the occurrence of any casualty, damage or injury to the Real Estate or Building Equipment or any portion thereof, the restoration of which is estimated by Mortgagor in good faith to cost more than Two Million Dollars ($2,000,000). In addition, notice of any casualty damage or loss, the restoration of which is estimated by Mortgagor in good 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, if not, as soon thereafter as it can reasonably be provided. (b) In the event of any Taking of or casualty or other damage or injury to the Mortgaged Property, 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 Mortgagor may receive or to which Mortgagor may become entitled with respect to the Mortgaged Property or any part thereof (collectively, "Proceeds"), Insurance 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 Mortgaged Property, or any part thereof, are hereby assigned to and shall be paid to Mortgagee. Notwithstanding anything to the contrary set forth in this Mortgage, to the extent the Proceeds are not in excess of Seven Million Dollars ($7,000,000) (the "Minimum Deposit Amount") (excluding, solely for purposes of such calculation, Proceeds paid in respect of the insurance described in Section 6(a)(iv)) then, provided that no Event of Default shall have occurred and be continuing, Mortgagee hereby consents to and agrees that such Proceeds shall be paid directly to Mortgagor to be applied to restoration of the Mortgaged Property in accordance with the 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 6(a)(iv) shall be paid directly to Mortgagor). Subject to the provisions of this Section 7(b) and Section 7(c) hereof, promptly after the occurrence of any interest earned thereon damage or destruction to all or any portion of the Mortgaged Property or a Taking of a portion of the Mortgaged Property, Mortgagor shall commence and diligently prosecute to completion, subject to Excusable Delays, 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 Exceptions. 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 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 Mortgagee, to be held and applied in accordance with the provisions of this Mortgage. Mortgagor hereby irrevocably authorizes Mortgagee to file and prosecute such claim and to collect and to make receipt for any such payment in the event Mortgagor fails so to act or if an Event of Default shall have occurred and be continuing, and in such case Mortgagee shall be authorized to file such claim and prosecute it with counsel satisfactory to it at the expense of Mortgagor. 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 Minimum Deposit Amount, and Mortgagor will deliver or cause to be delivered to Mortgagee all instruments reasonably requested by Mortgagee to permit such approval. Mortgagor will pay all costs, fees and expenses reasonably incurred by Mortgagee (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 an Event of Default shall have occurred and be continuing. If any Proceeds are received by Mortgagor, such Proceeds shall, until the completion of the related Work, be held in trust and segregated from other funds of the Mortgagor to 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 Minimum Deposit Amount such Proceeds shall, subject to the provisions of the Operating Agreements and the Leases, be forthwith paid to the Trustee to be held by the Trustee in a segregated account in trust for Mortgagor, in each case to be applied or disbursed in accordance with the provisions thereof. (c) In the event that any Proceeds (other than Proceeds paid with respect to the insurance described in Section 6(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 6(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 either by the condemning authority, insurance company or escrow agent to Mortgagee and shall be applied first as follows: first, toward reimbursement of the Mortgagee's reasonable costs and expenses in connection with recovery of the Proceeds and disbursement of the Proceeds (as further described below), including, without limitation, reasonable administrative costs and inspection fees, and then, to the prepayment of the Indebtedness secured hereby (which prepayment shall be made on the next Interest Payment Date occurring at least ten (10) Business Days following notice to Mortgagee of an elected or required prepayment hereunder, which notice Mortgagor shall promptly give), without prepayment premium or penalty, only if: (including reasonable attorneys' i) Mortgagor is not required to restore the Mortgaged Property pursuant to any Operating Agreement or Lease, and (A) the Taking or casualty adversely affects leased areas of the Mortgaged Property, and paralegals' feesthe restoration of the Mortgaged Property cannot reasonably be completed before the date of expiration of any insurance maintained pursuant to Section 6(a)(iv) hereof, or (B) the Taking or casualty occurs during the last six (6) months of the term of the Loan, or (C) the Taking or casualty effects all of the Mortgaged Property; or (ii) If such Proceeds were the result of a Taking, then after restoration is completed, the Proceeds that are not required to effect such restoration shall be applied, without premium or penalty, to the prepayment of principal and accrued interest of the Mortgage Notes. (d) If Proceeds are not required to be applied towards payment of the Indebtedness pursuant to Section 7(c) above, then after payment of the expenses described in clause first of Section 7(c), Mortgagee shall make the Proceeds (except Proceeds paid with respect to the insurance described in Section 6(a)(iv)) which it is holding pursuant to the terms hereof available to Mortgagor for payment of or reimbursement of Mortgagor's expenses incurred with respect to the Work, upon the terms and subject to the conditions set forth below and in Section 7(e): (i) there shall be no continuing Event of Default hereunder; (ii) to the extent, if any, that the estimated cost of the Work (as estimated by an Independent Architect) shall exceed the Proceeds available, Mortgagor shall (within a reasonable period of time after receipt of such estimate, and in connection any event prior to any further disbursement by Mortgagee) deposit with or deliver to Mortgagee Cash and Cash Equivalents and/or a Letter of Credit in the amount of such excess; and (iii) Mortgagee shall, within a reasonable period of time prior to Mortgagor's 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 to the extent that the same are required by law or are prepared by the Mortgagor. The plans and specifications shall require that the Work be done in a first-class workmanlike manner substantially equivalent to the quality and character of the original work in the Improvements, so that upon completion thereof (taking into account a commercially reasonable time to relet the affected portion of the Mortgaged Property), the Mortgaged Property shall be at least substantially equal in value and general utility to the Mortgaged Property prior to the damage or destruction (or, in the case of a partial Taking, to the state to which it is capable of being restored). Mortgagor shall restore all Improvements such that when they are fully restored and/or repaired that such Improvements and their contem plated use fully comply with all applicable Legal Requirements, including, without limitation, zoning, environmental and building laws, codes, ordinances and regulations. (e) Disbursement of Proceeds shall be made from time to time (but not more frequently than once in any month) by Mortgagee as the Work progresses upon receipt by Mortgagee of (i) an Officer's 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 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-five percent (95%) of the value of the Work performed or materials furnished and incorporated into the Improvements from time to time (except in the case of contractors' or subcontractors' work as to which final completion has been attained), and at all times the undisbursed balance of said Proceeds, together with all amounts for which Cash or Cash Equivalents or a Letter of Credit deposited or delivered 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 other than Permitted Exceptions; final payment of all Proceeds remaining with Mortgagee shall be made upon receipt by Mortgagee of a certification by an Independent Architect as to the completion of the Work substantially in accordance with the recovery submitted plans and specifications, and the filing of a notice of completion (if such filing is required by applicable law). If the Proceeds shall be more than the Threshold Amount, Mortgagee shall require (i) evidence of mechanic's lien waivers, and (ii) an endorsement to its title insurance policy insuring the continued priority of the Lien of this Mortgage (subject to Permitted Exceptions and any Liens associated with the Leased Personalty) as to all sums advanced hereunder, such endorsement to be paid for by Mortgagor. From time to time as the Work progresses, the amount of any Cash or Cash Equivalents so furnished may be withdrawn by Mortgagor and paid or otherwise applied by or returned to Mortgagor in an amount equal to the amount Mortgagor would be entitled to so withdraw if the same were Proceeds, and any Letter of Credit so furnished may be reduced by Mortgagor in an amount equal to the amount Mortgagor would be entitled to reduce if the same were Proceeds. At any time after substantial completion of any Work in respect whereof Cash and Cash Equivalents and/or a Letter of Credit was deposited pursuant hereto, the whole balance of any Cash so deposited with Mortgagee and then remaining on deposit may be withdrawn by Mortgagor and shall be applied paid by Mortgagee to Mortgagor and any Cash and Cash Equivalents and/or Letter of Credit so deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released by Mortgagee to Mortgagor, within ten (10) days after receipt by Mortgagee of an application for such withdrawal and/or release together with an Officer's Certificate, and signed also (as to the following clause (1)) by the Independent Architect, setting forth in substance as follows: (1) that the Work in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects in accordance with any plans and specifications therefor previously filed with Mortgagee under Section 7(d) hereof; and (2) that to the knowledge of the certifying Person all amounts which Mortgagor is or may become liable to pay in respect of such Work through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 8(c) hereof and, to the extent that such are customary and reasonably obtainable by prudent managers in the sole metropolitan area where the Premises are located and absolute discretion of Mortgagee and without regard to the adequacy of its security under this Mortgage (A) to the payment or prepayment of all or any portion of the Note including the Prepayment Premium described in the Note; (B) to the reimbursement of expenses incurred by Mortgagee in connection with the restoration of the Property or Collateral; or (C) to the performance of any of the covenants contained in this Mortgage as Mortgagee may determine. Any prepayment of the Note or portion thereof pursuant to Mortgagee's election under this Section shall be subject to the Prepayment Premium described in the Note. Upon any Event of Default by Mortgagor under this Mortgage, all right, title and interest of Mortgagor in and to all any and all insurance policies then in force, including any and all unearned premiums and existing claims, will inure to Mortgagee, which, at its sole option, and as attorney-in-fact for Mortgagor, may then make, settle and give binding acquittances for claims under all such policies, and may assign and transfer such policies or cancel or surrender them, applying any unearned premium in such manner as Mortgagee may elect. The foregoing appointment of Mortgagee as attorney-in-fact for Mortgagor is coupled not contesting payment in accordance with an interestSection 8(c) hereof, that lien waivers have been obtained from the general contractor and is irrevocablemajor subcontractors performing such Work.