Mortgaged Property Undamaged; No Condemnation Proceedings There is no proceeding pending or threatened for the total or partial condemnation of the Mortgaged Property. The Mortgaged Property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty so as to affect adversely the value of the Mortgaged Property as security for the Mortgage Loan or the use for which the premises were intended and each Mortgaged Property is in good repair. There have not been any condemnation proceedings with respect to the Mortgaged Property and the Seller has no knowledge of any such proceedings in the future;
Condemnation Proceedings 15.5.1. District covenants and agrees, but only to the extent that it may lawfully do so, that so long as this Site Lease remains in effect, the District will not seek to exercise the power of eminent domain with respect to the Project so as to cause a full or partial termination of this Site Lease and the Facilities Lease.
15.5.2. If for any reason the foregoing covenant is determined to be unenforceable or in some way invalid, or if District should fail or refuse to abide by such covenant, then, to the extent they may lawfully do so, the Parties agree that the financial interest of Developer shall be as indicated in the Facilities Lease.
Casualty; Condemnation (a) If any condemnation or conveyance in lieu thereof of all or any portion of the Real Property occurs or is threatened prior to Closing (written notice of which shall be given to Purchaser by Seller promptly upon its receipt), Purchaser may at its option, either (i) terminate this Agreement by written notice to Seller given within twenty (20) days after Purchaser is notified of such actual or possible proceedings (but before the Closing), in which case all of the Escrow Funds shall be returned to Purchaser and all further rights and obligations of the parties under this Agreement shall terminate, except those expressly stated to survive termination, or (ii) proceed to Closing without abatement of the Purchase Price, in which case all proceeds or award (less any expenses incurred by Seller) shall be assigned to Purchaser. If any condemnation or conveyance in lieu thereof is presently pending or occurs after the date hereof, Seller shall not settle or agree to accept any compensation for same without Purchaser’s prior written consent, not to be unreasonably withheld.
(b) In the event of loss or damage to the Property or any portion thereof which is not “major” (as hereinafter defined), this Agreement shall remain in full force and effect, and neither Purchaser nor Seller shall have the right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said damage except as set forth in the next sentence. In such event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(c) In the event of a “major” loss or damage to the Property or any portion thereof, Purchaser may terminate this Agreement by written notice to Seller, in which event the Escrow Funds shall be returned to Purchaser. If Purchaser does not give written notice of termination of this Agreement within twenty (20) days after Seller sends Purchaser written notice of the occurrence of major loss or damage, then Purchaser shall be deemed to have elected to proceed with Closing, in which event, the transaction shall proceed as contemplated herein, Seller shall provide a credit against the Purchase Price equal to Seller’s interest in insurance proceeds that have been collected by Seller and assign to Purchaser all of Seller’s right, title and interest in the proceeds to be paid on the claim of loss, less any sums expended by Seller prior to Closing in connection with its insurance claim (including any deductibles paid) or for the restoration or repair of the damaged Property.
(d) For purposes of this Section 12, “major” loss or damage refers to loss or damage to the Property or any portion thereof: (i) such that the cost of repair or restoration of the damage to a condition substantially identical to that prior to the event of damage would be, either be equal to or greater than $500,000 or require more than 120 days after the loss or damage to repair and restore, as determined by an independent appraiser chosen by Purchaser and reasonably acceptable to Seller, or (ii) having a material adverse impact upon the ability or feasibility of operating a nursing home facility on the Property, in substantially the same manner as the Property is being operated by Seller on the date hereof. Within ten (10) days after its occurrence, Seller shall give Purchaser written notice of any casualty and, if then available, an estimate of the restoration costs and time for restoration.
CASUALTY LOSS AND CONDEMNATION (a) If after the date of execution of this Agreement and prior to the Closing any part of the Assets suffers a Casualty Loss or if any part of the Assets is taken in condemnation or under the right of eminent domain or if proceedings for such purposes are pending or Threatened, Seller shall promptly give Buyer written notice of such occurrence, including reasonable particulars with respect thereto, and this Agreement shall remain in full force and effect notwithstanding any such destruction, taking, proceeding, or threat, subject to Sections 11.08 and 11.14.
(b) With regard to a Casualty Loss or condemnation occurring after the date of execution of this Agreement, without Buyer’s prior consent, no insurance or condemnation proceeds shall be committed or applied by Seller to repair, restore, or replace a lost, damaged, destroyed or taken portion of the Assets if the cost to repair, restore, or replace a lost, damaged, destroyed or taken portion of the Assets is projected to exceed $50,000. To the extent such proceeds are not committed or applied by Seller prior to the Closing Date in accordance with this Section 11.16(b), Seller shall at the Closing pay to Buyer all sums paid to Seller by reason of such loss, damage, destruction or taking, less any reasonable costs and expenses incurred by Seller in collecting such proceeds. In addition and to the extent such proceeds have not been committed or applied by Seller in accordance with this Section 11.16(b), in such repair, restoration, or replacement, Seller shall transfer to Buyer, at Closing, without recourse against Seller, all of the right, title, and interest of Seller in and to any unpaid insurance or condemnation proceeds arising out of such loss, damage, destruction or taking, less any reasonable costs and expenses incurred by Seller in collecting such proceeds. Any such funds which have been committed by Seller for repair, restoration, or replacement as aforesaid shall be paid by Seller for such purposes or, at Seller’s option, delivered to Buyer upon Seller’s receipt from Buyer of adequate assurance and indemnity that Seller shall incur no liability or expense as a result of such commitment.
(c) If and to the extent any portion of the loss attributable to a Casualty Loss occurring after the date of execution of this Agreement and before Closing is not covered by insurance (such uncovered portion of the Casualty Loss being referred to in this Section as an "uninsured loss"), Buyer and Seller shall attempt to agree on the value of the uninsured Casualty Loss on or before the date five (5) days after Buyer receives written notice of the Casualty Loss. If the parties are not able to agree on such value within such 5-day period, the value shall be determined by an independent casualty adjuster, experienced in determining casualty losses in matters similar to the disputed Casualty Loss, who shall be selected by Seller from a list of three (3) such independent casualty adjusters that is provided to Seller by Buyer. Said independent casualty adjuster shall be selected by Seller within five (5) days of the written receipt by Seller of Buyer’s written listing of independent casualty adjusters and shall provide both Seller and Buyer with a complete and documented report as to his findings within ten (10) Business Days after being selected by Seller. For purposes of this Section, the value of the uninsured Casualty Loss shall be equal to the lesser of (i) the aggregate reduction in Allocated Value of the affected Assets resulting from the uninsured Casualty Loss, if such affected Assets are not repaired, or (ii) the amount required to repair the affected portion of the Assets to its condition immediately preceding the occurrence of the Casualty Loss plus any other Damages which may be suffered on account of such Casualty Loss. The Purchase Price shall be reduced by the amount of the value of such an uninsured Casualty Loss as finally determined pursuant to this Section, and if such final determination is not available on the scheduled Closing Date, Closing shall not be delayed, but rather, the amount paid at Closing shall be reduced by the value of the uninsured Casualty Loss estimated in good faith by Buyer, and the difference between such good faith estimate and the value finally determined pursuant hereto shall be included as part of the final adjustments to be made after Closing as contemplated by Section 2.05.
Insurance/Condemnation Proceeds Not later than the tenth Business Day following the date of receipt by Holdings or any of its Subsidiaries, or the Collateral Agent, for the benefit of the Secured Parties, as loss payee, of any Net Insurance/Condemnation Proceeds, the Borrower shall prepay the Loans in an aggregate amount equal to such Net Insurance/Condemnation Proceeds; provided that (i) so long as no Event of Default shall have occurred and be continuing and (ii) to the extent that aggregate Net Insurance/Condemnation Proceeds from the Closing Date through the applicable date of determination do not exceed $25,000,000, the Borrower shall have the option, directly or through one or more of the Operating Credit Parties or any of their respective Subsidiaries, to invest such Net Insurance/Condemnation Proceeds within three hundred sixty (360) days of receipt thereof (or within eighteen (18) months following receipt thereof if a contractual commitment to reinvest is entered into within three hundred sixty (360) days following receipt thereof) in long term productive assets of the general type used in the business of Holdings and its Subsidiaries, which investment may include the repair, restoration or replacement of the applicable assets thereof, in capital expenditures or in assets (other than Cash and Cash Equivalents) used or useful in the business of the Borrower and its Subsidiaries; provided that, if at the time that any such prepayment would be required the Borrower is also required to repay or repurchase or to offer to repurchase or repay Senior Secured Debt of the Borrower or any of its Subsidiaries permitted under Section 6.1 pursuant to the terms of the documentation governing such Senior Secured Debt with the proceeds of such Net Insurance/Condemnation Proceeds (such Senior Secured Debt required to be repaid or repurchased or to be offered to be so repaid or repurchased, “Other Applicable Insurance Indebtedness”), then the Borrower may apply such Net Insurance/Condemnation Proceeds on a pro rata basis to the prepayment of the Loans and to the repayment or repurchase of Other Applicable Insurance Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.10(b) shall be reduced accordingly (for purposes of this proviso pro rata basis shall be determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable Insurance Indebtedness at such time, with it being agreed that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Insurance Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Loans in accordance with the terms hereof); provided, further, that to the extent the holders of Other Applicable Insurance Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Loans in accordance with the terms hereof.
Purchaser's Election to Commence Foreclosure Proceedings (a) In connection with any Mortgage Loan identified in a report under Section 2.01(a)(i)(B), the Purchaser may elect to instruct the Company to cause, to the extent that the Company as Master Servicer is granted such authority in the related Servicing Agreement, the related Servicer to proceed with the Commencement of Foreclosure as soon as practicable. Such election must be evidenced by written notice received by the Company by 5:00 p.m., New York City time, on the third Business Day following the delivery of such report under Section 2.01(a)(i).
(b) Within two Business Days of making any Election to Foreclose, the Purchaser shall remit to the Company, for deposit in the Collateral Fund, an amount, as calculated by the Company, equal to 125% of the current unpaid principal balance of the Mortgage Loan and three months interest on the Mortgage Loan at the applicable Mortgage Interest Rate. If and when any such Mortgage Loan is brought current by the mortgagor, all amounts in the Collateral Fund in respect of such Mortgage Loan (after adjustment for all permitted withdrawals and deposits pursuant to this Agreement) shall be released to the Purchaser if and to the extent that reimbursement therefor from amounts paid by the mortgagor is not prohibited pursuant to the Pooling and Servicing Agreement or the related Servicing Agreement, applicable law or the related mortgage note. The terms of this Agreement will no longer apply to the servicing of any Mortgage Loan upon the failure of the Purchaser to deposit the above amounts relating to the Mortgage Loan within two Business Days of the Election to Foreclose subject to Section 3.01.
(c) With respect to any Mortgage Loan as to which the Purchaser has made an Election to Foreclose, the related Servicer shall continue to service the Mortgage Loan in accordance with its customary procedures (other than Commencement of Foreclosure as provided herein). In connection therewith, the Company shall have the same rights to make withdrawals for Monthly Advances and Liquidations Expenses from the Collateral Fund as are provided under Section 2.02(e), and the Company shall make reimbursements thereto to the limited extent provided under such subsection in accordance with its customary procedures. The Company shall not be required to cause, to the extent that the Company as Master Servicer is granted such authority in the related Servicing Agreement, the related Servicer to proceed with the Commencement of Foreclosure if (i) the same is stayed as a result of the mortgagor's bankruptcy or is otherwise barred by applicable law, or to the extent that all legal conditions precedent thereto have not yet been complied with, or (ii) the Company believes there is a breach of representations or warranties by the Company, a Servicer, or a Seller, which may result in a repurchase or substitution of such Mortgage Loan, or (iii) the Company or related Servicer reasonably believes the Mortgaged Property may be contaminated with or affected by hazardous wastes or hazardous substances (and, without limiting the related Servicer's right not to proceed with the Commencement of Foreclosure, the Company supplies the Purchaser with information supporting such belief). Any foreclosure that has been initiated may be discontinued (x) without notice to the Purchaser if the Mortgage Loan has been brought current or if a refinancing or prepayment occurs with respect to the Mortgage Loan (including by means of a short payoff approved by the Purchaser) or (y) with notice to the Purchaser if the related Servicer has reached the terms of a forbearance agreement unless instructed otherwise by the Purchaser within two Business Days of such notification. Any such instruction shall be based upon a decision that such forbearance agreement is not in conformity with reasonable servicing practices.
(d) Upon the occurrence of a liquidation with respect to any Mortgage Loan as to which the Purchaser made an Election to Foreclose and as to which the related Servicer proceeded with the Commencement of Foreclosure in accordance with subsection (c) above, the Company shall calculate the amount, if any, by which the unpaid principal balance of the Mortgage Loan at the time of liquidation (plus all unreimbursed interest and servicing advances and Liquidation Expenses in connection therewith other than those paid from the Collateral Fund) exceeds the actual sales price obtained for the related Mortgaged Property, and the Company shall withdraw the amount of such excess from the Collateral Fund, shall remit the same to the Trust Estate and in its capacity as Master Servicer shall apply such amount as additional Liquidation Proceeds pursuant to the Pooling and Servicing Agreement. After making such withdrawal, all amounts remaining in the Collateral Fund (after adjustment for all withdrawals and deposits pursuant to subsection (c) in respect of such Mortgage Loan shall be released to the Purchaser.
EMINENT DOMAIN/CONDEMNATION 7.1 Lessor to notify Lessee 7.2 Whole taking, rents prorated 7.3 Taking
Insurance Casualty Condemnation Restoration SECTION 8.1. INSURANCE SECTION 8.2. CASUALTY SECTION 8.3. CONDEMNATION SECTION 8.4. RESTORATION
Insurance Casualty Condemnation Seller agrees that it will keep the Property insured against casualty until the Closing Date under its existing insurance policies or replacement policies with the same coverage as existing at the date of execution hereof. Such policies shall be terminated by Seller at the Closing Date. In the event that, prior to the Closing Date, all or any portion of the Property shall be destroyed by fire or other casualty, or taken by condemnation or exercise of the right of eminent domain, or if proceedings therefor shall be instituted or threatened and the amount of any such damage or condemnation exceeds $100,000, then Buyer may, within ten (10) days of its receipt of notice of such event, elect to terminate this Agreement by written notice to Seller and Escrow Agent. If the damage or condemnation is equal to or less than $100,000 or if the damage or condemnation exceeds $100,000 but Buyer does not terminate this Agreement, then the parties shall proceed to close the transaction contemplated hereby, in which event any insurance or condemnation proceeds (excluding rental loss proceeds attributable to the period prior to the Closing Date) shall inure to the benefit of Buyer and shall be assigned by Seller to Buyer at close of Escrow. In the event the parties proceed to close the transaction contemplated hereby, Seller shall pay any required deductible applicable to such insurance coverage, or the Purchase Price shall be reduced by the amount of any such deductible.
Condemnation/Eminent Domain In the event that the Premises or any part thereof, or the whole or any part of the Building, shall be taken or appropriated by eminent domain or shall be condemned for any public or quasi-public use, or (by virtue of any such taking, appropriation or condemnation) shall suffer any damage (direct, indirect or consequential) for which Landlord or Tenant shall be entitled to compensation, then (and in any such event) this Lease and the Term hereof may be terminated at the election of Landlord by a notice in writing of its election so to terminate which shall be given by Landlord to Tenant within sixty (60) days following the date on which Landlord shall have received notice of such taking, appropriation or condemnation. In the event that a material part of the Premises or the means of access thereto shall be so taken, appropriated or condemned, and in either case, the remainder of the Premises or the mode of access thereto is, in Tenant’s reasonable judgment, unsuitable for the operation of Tenant’s business in the Premises, then (and in any such event) this Lease and the Term hereof may be terminated at the election of Tenant by a notice in writing of its election so to terminate which shall be given by Tenant to Landlord within sixty (60) days following the date on which Tenant shall have received notice of such taking, appropriation or condemnation. Upon the giving of any such notice of termination (either by Landlord or Tenant) this Lease and the Term hereof shall terminate on or retroactively as of the date on which Tenant shall be required to vacate any part of the Premises or shall be deprived of a substantial part of the means of access thereto, provided, however, that Landlord may in Landlord’s notice elect to terminate this Lease and the Term hereof retroactively as of the date on which such taking, appropriation or condemnation became legally effective. In the event of any such termination, this Lease and the Term hereof shall expire as of such effective termination date as though that were the Expiration Date as stated in Exhibit 1, and the Yearly Rent (together with Operating Costs Excess and Tax Excess) shall be apportioned as of such date. If neither party (having the right so to do) elects to terminate Landlord will, with reasonable diligence and at Landlord’s expense, restore the remainder of the Premises, or the remainder of the means of access, as nearly as practicably may be to the same condition as obtained prior to such taking, appropriation or condemnation in which event (i) the Total Rentable Area shall be equitably adjusted, (ii) a just proportion of the Yearly Rent, according to the nature and extent of the taking, appropriation or condemnation and the resulting permanent injury to the Premises and the means of access thereto, shall be permanently abated, and (iii) a just proportion of the remainder of the Yearly Rent, according to the nature and extent of the taking, appropriation or condemnation and the resultant injury sustained by the Premises and the means of access thereto, shall be abated until what remains of the Premises and the means of access thereto shall have been restored as fully as may be for permanent use and occupation by Tenant hereunder. Except for any award specifically reimbursing Tenant for moving or relocation expenses or for Tenant’s personal property, or for the unamortized value of any leasehold improvements paid for by Tenant (in excess of any Landlord contribution), there are expressly reserved to Landlord all rights to compensation and damages created, accrued or accruing by reason of any such taking, appropriation or condemnation, in implementation and in confirmation of which Tenant does hereby acknowledge that Landlord shall be entitled to receive all such compensation and damages, grant to Landlord all and whatever rights (if any) Tenant may have to such compensation and damages, and agree to execute and deliver all and whatever further instruments of assignment as Landlord may from time to time reasonably request. In the event of any taking of the Premises or any part thereof for temporary (i.e., not in excess of one (1) year) use, (i) this Lease shall be and remain unaffected thereby, and (ii) Tenant shall be entitled to receive for itself any award made to the extent allocable to the Premises in respect of such taking on account of such use, provided, that if any taking is for a period extending beyond the Term of this Lease, such award shall be apportioned between Landlord and Tenant as of the Expiration Date or earlier termination of this Lease.
