Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.
Appears in 2 contracts
Samples: Real Estate Mortgage and Security Agreement (Bioanalytical Systems Inc), Real Estate Mortgage and Security Agreement (Bioanalytical Systems Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice Section 7.1 If the Premises or any Building or any part thereof shall be damaged or destroyed by fire or other casualty (including any casualty for which insurance was not obtained or obtainable) of any kind or nature, ordinary or extra-ordinary, foreseen or unforeseen, so long as no Event of Default has occurred and is continuing (a) Landlord shall pay over to Tenant, upon the terms set forth in Section 7.2, any moneys which may be recovered by Landlord from property insurance, (b) this Lease shall be unaffected thereby and shall continue in full force and effect, and (c) Tenant shall, utilizing such insurance proceeds and such additional funds as may be required, at Tenant’s sole cost and expense, expeditiously and in a good and workmanlike manner, cause such damage to or destruction to be remedied or repaired (the “Restoration”) by restoring the Premises to substantially the same condition and configuration immediately prior to such damage or destruction. All Restoration work shall be performed in accordance with the provisions of this Lease, including, without limitation, the provisions of Section 5.4 and 5.5 hereof. Tenant hereby waives the provisions of any improvements on Legal Requirement to the Mortgaged Property contrary and agrees that the provisions of this Article VII shall govern and control in lieu thereof. If Tenant shall fail or neglect to personal property used in restore the operation of Premises with reasonable diligence, or having so commenced such Restoration, shall fail to complete the Mortgaged Property and in case of loss covered by policies of insurancesame with reasonable diligence, Mortgagee is hereby authorized or if prior to make proof of loss if not promptly made by Mortgagor or the lessees under any lease completion of any portion of such Restoration by Tenant, this Lease shall expire or be terminated for any reason, Landlord shall have the Mortgaged Property right, but not the obligation, to complete such Restoration at Tenant’s cost and expense and the cost thereof shall be payable within five (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds5) days after written demand as Other Rent, together with interest thereon from the date of such expense demand until paid at the highest default rate set forth in Default Rate. In addition, if Landlord so completes the NotesRestoration as provided hereunder, Landlord shall be added entitled to and become a part reasonable supervisory fee from Tenant to compensate Landlord for administering the Restoration.
Section 7.2 Subject to the provisions of this Article VII, unless Landlord, the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment feeinsurance carrier, or any Mortgagee elects in their discretion to perform the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be Restoration (being under no obligation to a condition of at least equal value as prior to such damage or destruction, do so) and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So so long as there exists no Event of Default (as defined in has occurred and is continuing, Landlord shall pay over to Tenant from time to time, upon the following terms, any moneys which may be received by Landlord pursuant to the Mortgage Loan Agreement), and Documents from property insurance provided any loss or damage cannotby Tenant but, in no event, to any extent or in any sum exceeding the sole judgment of Mortgageeamount actually collected by Landlord upon the loss; provided, result in the terminationhowever, cancellation or modification of the Leases (if any)that Landlord, and if the Leases so require and the insurers do not deny liability as before paying such moneys over to the insureds, such insurance proceeds, after deducting expenses incurred in collectionTenant, shall be made available under entitled to reimburse or pay itself or Mortgagee therefrom to the conditions and extent, if any, of (a) the expenses paid or incurred by Landlord or Mortgagee in the manner specified in collection of such moneys, and (b) any other amounts then outstanding and owing to Landlord under this Lease. Landlord shall pay to Tenant, as herein provided, the following paragraph, aforesaid insurance proceeds which may be received by Landlord for the repair, restoration, replacement or rebuilding purpose of improvements on Restoration to be used by Tenant to restore the Mortgaged Property Premises to a condition value which shall be not less than a value substantially similar to the value of at least equal value as existed the Premises prior to such damage fire or destructionother casualty. OtherwisePrior to making any Restoration, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction Tenant shall furnish Landlord with an estimate of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding such Restoration, prepared by a licensed third party architect or restoration contractor selected by Tenant and reasonably approved by Landlord. Such insurance moneys shall be paid (i) to Tenant in a lump sum if the cost of such Restoration is less than the Mortgaged Property Threshold Amount and (ii) if the cost of such Restoration is equal to or personal property. Howevergreater than the Threshold Amount, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this AgreementSection 7.2 and 7.3 to Tenant (or, at Landlord’s option, directly to the party to whom such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed payment is due) from time to time thereafter in installments as the Restoration progresses, within five (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), 5) Business Days after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings submission by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of Tenant to Landlord showing the cost of completion labor and material incorporated in the Restoration, or incorporated therein since the last previous submission (assuming such proceeds are available from the insurer). If any vendor’s, mechanic’s, laborer’s, or materialman’s Lien is filed against the Premises or any part thereof, or if any public improvement Lien is created or permitted to be created by Tenant and is filed against Landlord, or any assets of, or funds appropriated to, Landlord, Tenant shall not be entitled to receive any further installment until such Lien is satisfied or otherwise discharged, unless such Lien is contested by Tenant in good faith and, if required by applicable law, Tenant has obtained and delivered a bond issued by a surety, in an amount and in form otherwise satisfactory to Landlord in its reasonable discretion. The amount of any installment to be paid to Tenant shall be such work and proportion of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented total insurance moneys received by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior Landlord pursuant to the final completion Mortgage Loan Documents as the cost of such restorationlabor and materials theretofore incorporated by Tenant in the Restoration bears to the total estimated cost of the Restoration by Tenant, repairless (1) all payments theretofore made to Tenant out of said insurance proceeds, replacement or rebuilding shall exceed ninety and (2) ten percent (9010%) of the value amount so determined, until fifty percent (50%) of the work performed Restoration has been completed (and five percent (5%) thereafter) (the “Retainage”). Notwithstanding the foregoing, Landlord shall not withhold the Retainage from time any installment provided (I) such installment constitutes the final payment due a contractor or materialman, or (II) the contractor is bonded and Tenant furnishes to time Landlord payment and at all times performance bonds and labor and material bonds of Tenant’s contractor complying with the undisbursed Legal Requirements and otherwise satisfactory to Landlord in its reasonable discretion, naming Landlord as co-obligee, in which event Landlord shall withhold from such installment the same percentage withheld by Tenant pursuant to the construction contract. Upon completion of and payment for the Restoration by Tenant, including reimbursement to Tenant of the Retainage or other amount, as applicable, the balance of such any and all insurance proceeds remaining in held by Landlord shall be paid to Tenant. In the hands of event that the disbursing party, together with funds deposited insurance proceeds are insufficient for the purpose or irrevocably committed of paying for such purposethe Restoration, Tenant shall nevertheless be sufficient required to make the Restoration and pay any additional sums required for the Restoration in accordance with the reasonable judgment provisions of MortgageeSection 7.4 hereof. Notwithstanding the foregoing, if Landlord makes the Restoration at Tenant’s expense, as provided in Section 7.1 hereof, then Landlord shall use any amounts held by Landlord to pay for the cost of completion of all such restoration, repair, replacement Restoration.
Section 7.3 The following shall be conditions precedent to each payment made to Tenant (or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding to any other party) as provided in Section 7.2 above:
(a) there shall be submitted to Landlord the certificate of the aforesaid architect or contractor stating (i) that the sum then requested to be withdrawn either has been paid by Tenant and/or is justly due to contractors, subcontractors, materialmen, engineers, architects or other Persons (whose names and approved addresses shall be stated) who have rendered or furnished certain services or materials for the work and giving a brief description of such services and materials and the principal subdivisions or categories thereof and the several amounts so paid or due to each of such Persons in respect thereof, and stating in reasonable detail the progress of the work up to the date of said certificate, (ii) that no part of such expenditures has been or is being made the basis, in any previous or then pending request, for the withdrawal of insurance money or has been made out of the proceeds of insurance received by Mortgagee Tenant, (iii) that the sum then requested does not exceed the value of the services and materials described in the certificate, and (iv) that the balance of any insurance proceeds held by Landlord, together with such other sums, if any, which Tenant has made or will (for which evidence of Tenant’s intention and ability shall be to Landlord’s satisfaction in its sole and absolute discretion) make available for the Restoration in accordance with Section 7.4 hereof and to Landlord’s satisfaction (in its sole and absolute discretion) will be sufficient upon completion of the Restoration to pay for the same in full, and stating in reasonable detail an estimate of the cost of such completion;
(b) there shall be furnished to Landlord an official search, or a certificate of a title insurance company satisfactory to Landlord in its sole and absolute discretion, or other evidence satisfactory to Landlord in its sole and absolute discretion, showing that there has not been filed any vendor’s, mechanic’s, laborer’s or materialman’s statutory or other similar Lien affecting the Premises or any part thereof, or any public improvement Lien created or permitted to be created by Tenant affecting Landlord, or the assets of, or funds appropriated to, Landlord, which has not been discharged of record, except such as will be discharged upon payment of the amount then requested to be withdrawn, or unless any such Lien is contested by Tenant in good faith and Tenant has obtained and delivered a bond issued by a surety, in an amount and in form otherwise satisfactory to Landlord in its sole and absolute discretion; and
(c) at the time of making such payment, no Default shall have occurred and be continuing.
Section 7.4 If the estimated cost of any Restoration determined as provided in Section 7.2 hereof exceeds the net insurance proceeds, then, prior to the commencement of any Restoration, Tenant hereby covenants to deposit with Landlord, a bond, cash, completion guaranty or other security satisfactory to Landlord (in its sole and absolute discretion) in the amount of such excess, to be held and applied by Landlord in accordance with the provisions of Section 7.2 hereof, as security for the completion of the work. Any surplus which may remain out , free of said insurance proceeds after payment of costs of building public improvement, vendors’, mechanics’, laborers’ or materialmen’s statutory or other similar Liens.
Section 7.5 As material consideration to Landlord for its agreement to enter into this Lease, the parties agree that this Lease shall not terminate or be forfeited or be affected in any manner, and restoration may, at the option of Mortgagee, there shall be applied either on account no reduction or abatement of the Indebtedness then most remotely Operating Lease Rent payable hereunder, by reason of damage to be paid in inverse chronological orderor total, without a prepayment feesubstantial or partial destruction of the Premises or any part thereof or by reason of the untenantability of the same or any part thereof, for or be paid due to any person damage or persons otherwise entitled thereto. Application destruction of the Premises from any cause whatsoever, and, notwithstanding any Legal Requirements, present or release of proceeds under future, Tenant waives any and all rights to quit or surrender the provisions hereof shall not cure Premises or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed part thereof on account of any such proceeds damage or other funds held destruction of the Premises. Tenant expressly agrees that its obligations hereunder, including the payment of Operating Lease Rent payable by Tenant hereunder, shall continue as though the Premises had not been damaged or destroyed and without abatement, suspension, diminution or reduction of any kind.
Section 7.6 Notwithstanding the foregoing provisions of this Article VII, all provisions contained in the hands Mortgage or any other Mortgage Loan Document with regard to Restoration of Mortgagee the Premises or the disbursing partyrelated obligations of Landlord shall take precedence over and be in lieu of any inconsistent provisions in this Article VII and, with respect to such obligations, shall be deemed to be obligations of Tenant hereunder.
Appears in 2 contracts
Samples: Operating Lease (Harrahs Entertainment Inc), Operating Lease (Harrahs Entertainment Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice Until the Closing, the Assets shall remain at the risk of Seller. In the event of any material damage to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation of the Mortgaged Property Assets after the date hereof and prior to the Closing (in case any such case, a “Damage or Destruction Loss”) Seller shall give notice thereof to Purchaser promptly thereafter. If any such Damage or Destruction Loss is covered by policies of loss insurance and the underlying Asset is not repaired or replaced prior to Closing, all right and claim of Seller to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by Seller and not used prior to the Closing Date to repair any damage or destruction) paid to Purchaser at Closing in accordance with Section 1.4(b). If any such Damage or Destruction Loss is not covered by policies of insurance, Mortgagee is hereby authorized Purchaser shall have the right to make proof of loss reduce the Cash Consideration by an amount equal to (i) if such Assets are not promptly made by Mortgagor destroyed or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to damaged beyond repair and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely are able to be paid, without a prepayment fee, or repaired to substantially the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require same condition that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage Damage or destruction. OtherwiseDestruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Assets affected by such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of Damage or Destruction Loss to substantially the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require same condition that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made existed immediately prior to the final completion occurrence of such restorationDamage or Destruction Loss, repairor (ii) if such Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement 31 cost, the replacement or rebuilding shall exceed ninety percent (90%) cost of the value Assets. If Purchaser elects to reduce the Cash Consideration pursuant to this Section 4.12, Seller and Purchaser shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of the work performed from time to time and at all times Damage or Destruction Loss is given by Seller, then the undisbursed balance of such proceeds remaining in the hands amount of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, reduction shall be sufficient in determined by the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyBankruptcy Court.
Appears in 1 contract
Samples: Asset Purchase Agreement
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to or destruction (a) Promptly, and in any case within three (3) Business Days after the occurrence thereof, Borrower shall notify Agent of any improvements on the Mortgaged Property fire or other Casualty with respect to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of any Property if Borrower’s reasonably foresees that of the Mortgaged cost of Restoration will exceed the lesser of (i) $1,000,000 or (ii) five percent (5%) of the Allocated Loan Amount for the applicable Property. Such notice also shall generally describe the nature and extent of such Casualty and set forth Borrower’s best estimate of the cost of Restoration.
(b) Agent shall be entitled to receive all insurance proceeds payable with respect to any Property (“Lease” or “Leases”)on account of a Casualty. Any expenses incurred by Mortgagee in the collection Borrower hereby irrevocably assigns, transfers and sets over to Agent all rights of Borrower to any such insurance proceeds, award or payment. Borrower hereby irrevocably authorizes and empowers Agent, in the name of Borrower or otherwise, to file for and prosecute in its own name what would otherwise be Borrower’s claim for any such insurance proceeds. Notwithstanding the foregoing, so long as no Default or Event of Default shall have occurred and shall then be continuing and provided Borrower promptly files all claims and diligently prosecutes same, Borrower shall have the right to file, adjust, settle and prosecute any claim for such insurance proceeds; provided, however, that Borrower shall not agree to any adjustment or settlement of any such claim payable with respect to a Casualty the insurance proceeds with respect to which are greater than $1,500,000 (the “Casualty Proceeds Disbursement Threshold”) without Agent’s prior consent. Borrower shall promptly after demand pay to Agent all reasonable costs and expenses (including the fee of any insurance consultant or adjuster and reasonable attorneys’ fees and disbursements) incurred by Agent in connection with a Casualty and seeking and obtaining any insurance proceeds, award or payment with respect thereto. Net Proceeds held by Agent, together with any interest thereon from earned thereon, shall constitute additional security for the date payment of the Obligations (a security interest therein being granted hereby), until disbursed in accordance with this Section 8.12 or Section 8.14 hereof, as the case may be. Notwithstanding the foregoing, or anything else herein, to the contrary, all proceeds of business interruption/rent loss insurance may be collected by and shall be paid to Agent and applied in accordance with Section 8.12(g) hereof.
(c) Borrower shall, at its sole cost and expense, promptly commence and diligently and continuously perform to completion the Restoration in a good and workmanlike manner and in compliance with all Legal Requirements and the requirements of the Permitted Encumbrances, whether or not Borrower shall have satisfied the requirements of Section 8.12(d) hereof in order to cause the Net Proceeds to be made available for such expense at Restoration and whether or not such insurance proceeds on account of the highest default rate set forth Casualty shall be sufficient for such purpose.
(d) With respect to any Property, in the Notescase of any Casualty with respect to which the insurance proceeds payable are equal to or greater than the Casualty Proceeds Disbursement Threshold, the Net Proceeds shall be added to and become held by Agent, if Agent so elects, as a part of the Indebtedness Collateral and shall be reimbursed applied or dealt with by Mortgagor Agent as follows:
(i) The Net Proceeds shall be disbursed in accordance with the requirements of Article III of this Loan Agreement such that the Net Proceeds shall be advanced in the same manner as the disbursement of the proceeds of the Cash Flow Collection Account if the following conditions are satisfied (each a “Release Condition” and collectively, the “Release Conditions”):
(A) no Default or Event of Default shall have occurred and be continuing;
(B) Borrower shall have delivered to Mortgagee immediately upon demand. Such net proceeds Agent within sixty (60) days after the occurrence of the Casualty, a notice of Borrower’s desire to undertake the Restoration;
(C) Borrower shall have demonstrated to the satisfaction of Agent that the Restoration can be completed at least three (3) months prior to the then-current Maturity Date, or such earlier time as may be applied required by Mortgageeapplicable Legal Requirements;
(D) Borrower shall have demonstrated to the satisfaction of Agent that sufficient funds are available to Borrower through rent and/or business interruption insurance maintained pursuant to Section 8.11 hereof, upon cash and/or a letter of credit or in reduction other similar cash-equivalent security reasonably satisfactory to Agent as to form, content and issuer, and which shall be for the benefit of Agent, to pay all debt service with respect to the Loan and all operating expenses with respect to such Property during the period reasonably estimated by Borrower as necessary for the completion of the Indebtedness then most remotely Restoration;
(E) Borrower shall have provided Agent with a guaranty of completion reasonably satisfactory to Agent in form and content and as to guarantor which guarantees the timely and lien-free completion of the Restoration; and
(F) to the extent, in Agent’s reasonable judgment, the Net Proceeds are insufficient to pay the costs of the Restoration, Borrower shall have provided Agent with a letter of credit, cash deposit or similar equivalent security in the amount of such deficiency in form, content and issuer reasonably satisfactory to Agent or other evidence reasonably satisfactory to Agent that Borrower has sufficient funds to pay the costs of the Restoration; and
(G) Agent shall have received written confirmation satisfactory to Agent that Qualified Leases shall remain in full force and effect through Restoration and upon and after completion of the Restoration, and with the exception of a Restoration required by Wachovia pursuant to a Wachovia Lease, the Lessees thereunder shall be obligated upon completion of the Restoration to pay rent in an aggregate amount of not less than the aggregate amount of rent necessary, in Agent’s sole determination, for the Loan-to-Value Ratio for the Property based on the Allocated Loan Amount of such Property (on the basis of an Appraisal at Borrower’s expense obtained by Agent in connection with the Restoration) to be paid, without a prepayment fee, or to no greater than the cost lesser of rebuilding or restoration of (A) the improvements on Loan-to-Value Ratio for the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as immediately prior to such damage or destructionCasualty based on Allocated Loan Amount and (B) the Loan-to-Value Ratio for the Property as of the Closing Date based on the Allocated Loan Amount of such Property, and the Net Operating Income for such net proceeds Property with respect to the twelve (12) calendar month period immediately following completion of insurance Restoration and based on Agent’s estimate of Gross Revenues for such Property to be received and Operating Expenses for such Property to be incurred during such twelve (12) calendar month period calculated, as projected by Agent, as of the date of Restoration is completed be no less than Net Operating Income for such Property with respect to the twelve (12) calendar month period immediately prior to the occurrence of the Casualty calculated as of the date the Casualty occurs.
(ii) Notwithstanding Section 8.12(d)(i) hereof, if Agent does not elect to hold the Net Proceeds, Borrower shall not disburse any Net Proceeds other than in accordance with the conditions of this Section 8.12(d) and Sections 8.12(e) and 8.12(f) hereof.
(iii) Notwithstanding anything to the contrary herein, upon the Release of any Property pursuant to Section 2.17 hereof, Agent shall release any Net Proceeds applicable to such Property to Borrower or Borrower may elect to reduce the Release Payment by the amount of such Net Proceeds, which Net Proceeds shall then constitute a portion of the Release Payment and be applied pursuant to Section 2.4(b) hereof.
(e) If one or more of the Release Conditions are not satisfied, all Net Proceeds shall be made available therefor under applied in accordance with Section 8.14 hereof, provided, that, if each of the conditions and in Release Conditions shall have been satisfied except the manner Release Condition set forth below. So long in Section 8.12(d)(i)(A) hereof as there exists no a result of the occurrence of a Default (as opposed to the occurrence of an Event of Default), Agent shall not so apply the Net Proceeds until such time, if any, as an Event of Default shall have occurred.
(f) All reasonable costs and expenses incurred by Agent in connection with making the Net Proceeds available for the Restoration (including reasonable attorneys’ fees and disbursements and reasonable fees and actual out-of-pocket expenses of Agent’s construction consultants and inspectors) shall be paid by Borrower. Any Net Proceeds remaining after the Restoration and the payment in full of all costs incurred in connection with the Restoration, at Agent’s option, either will be distributed by Agent to Borrower or applied as defined in a mandatory prepayment of the Loan.
(g) Business interruption/rent loss insurance proceeds of Borrower shall be deposited into either (i) an account or subaccount of Agent or (ii) an account at a bank or other financial institution approved by Agent. Provided no Default or Event of Default shall have occurred and be continuing, such proceeds shall be applied to the payment of Interest, principal due and payable under Section 2.4(d) hereof and other sums that become due and payable under the Loan Agreement)Documents as and when due and then to operating expenses for such Property approved by Agent and in such manner and upon such conditions as Agent shall determine. Borrower hereby grants to Agent a security interest in all rights of Borrower in and to such account and all sums on deposit therein as additional security for the Obligations. Upon the occurrence and during the continuation of an Event of Default, Agent shall have the rights and provided remedies with respect to such account specified in this Loan Agreement and in any other Loan Document. If held by Agent, the credit balance in such account or subaccount may be commingled with the general funds of Agent. If not held by Agent, Borrower shall cause the bank or financial institution at which such account is held to execute and deliver to Agent an Account Agreement with respect to such account, Borrower shall pay all fees and costs with respect thereto and Borrower shall not close such account without obtaining the prior consent of Agent. Neither Agent nor Lenders shall be liable for any loss of interest on or damage cannotany penalty or charge assessed against the funds in, in the sole judgment of Mortgageepayable on, or credited to such account as a result in the termination, cancellation or modification of the Leases (if any)exercise by Agent of any of its rights, and if remedies or obligations hereunder or under any other Loan Document. Any interest earned on the Leases so require and the insurers do not deny liability as to the insureds, balance of such insurance proceeds, after deducting expenses incurred in collection, account shall be made available under the conditions deposited into such account and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction with the balance of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt such account in accordance with this Agreement, Section 8.12(g). Agent shall have sole control over such net account. Any business interruption/rent loss insurance proceeds remaining after completion of insurance the Restoration shall be made available therefor under the conditions distributed to Borrower or, if an Event of Default has occurred and is continuing, at Agent’s election, deposited in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyLockbox Account.
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt If all or any part of the Demised Premises shall be damaged or destroyed by fire or other casualty, this Lease shall continue in full force and effect, unless terminated as hereinafter provided, and Lessor shall repair, restore or rebuild the Demised Premises to their condition at the time of the occurrence of the loss; provided, however, Lessor shall not be obligated to commence such repair, restoration or rebuilding until insurance proceeds are received by Lessor, and Lessor's obligation hereunder shall be limited to the proceeds actually received by Lessor under any insurance policy or policies, if any, which have not been required to be applied towards the reduction of any indebtedness secured by a mortgage or deed to secure debt covering the Shopping Center or any portion thereof. Lessee agrees to notify Lessor in writing not less than thirty (30) days prior to the date Lessee opens for business in the Demised Premises of the actual cost of all permanent leasehold improvements and betterments installed or to be installed by Lessee in the Demised Premises (whether same have been paid for entirely or partially by Lessee), but exclusive of Lessee's personal property, movable trade fixtures and contents. Similar notifications shall be given to Lessor not less than thirty (30) days prior to the commencement of any proposed alterations, additions or improvements to the Demised Premises by Lessee subsequent to the initial construction of the Demised Premises. If Lessee fails to comply with the foregoing provisions, any loss or damage Lessor shall sustain by reason thereof shall be borne by Lessee and shall be paid immediately by Lessee upon receipt of a xxxx therefor and evidence of such loss, and in addition to any other rights or remedies reserved by Lessor under this Lease, Lessor's obligations under this Article VIII to repair, replace and/or rebuild the Demised Premises shall be deemed inapplicable and in lieu thereof Lessor may, at its election, either restore or require Lessee to restore the Demised Premises to the condition which existed prior to such loss, and in either case Lessee shall pay the cost of such restoration. Lessee covenants and agrees to reopen for business in the Demised Premises within thirty (30) days after notice from Lessor that the Demised Premises are ready for re-occupancy. No damage or destruction to the Demised Premises shall allow Lessee to surrender possession of the Demised Premises or affect Lessee's liability for the payment of rents or charges or any other covenant herein contained, except as may be specifically provided in this Lease. Notwithstanding anything to the contrary contained in this Section 8.1 or elsewhere in this Lease, Lessor, at its option, may terminate this Lease on thirty (30) days' notice to Lessee if:
(a) The Demised Premises or the building in which the Demised Premises are located shall be damaged or destroyed as a result of an occurrence which is not covered by Lessor's insurance; or
(b) The Demised Premises shall be damaged or destroyed during the last three (3) years of the Term or any renewals thereof; or
(c) Any or all of the buildings or Common Areas of the Shopping Center are damaged (whether or not the Demised Premises are damaged) to such an extent that, in the sole judgment of Lessor, the Shopping Center cannot be operated as an economically viable unit. If the Demised Premises shall be damaged or destroyed and in the event that Lessor has elected to continue this Lease, Lessor and Lessee shall commence their respective obligations under this Article as soon as is reasonably possible and prosecute the same to completion with all due diligence. In the event of any termination of this Lease under the provisions of Section 8.1, this lease shall terminate at the end of the calendar month in which such notice of termination is given. The Minimum Rent shall be abated proportionately with the degree to which Lessee's use of the Demised Premises is impaired during the period of any damage, repair or restoration provided for in this Article VIII; provided further that in the event Lessor elects to repair any damage as herein contemplated, any abatement of Minimum Rent shall end fifteen (15) days after notice by Lessor to Lessee that the Demised Premises have been repaired. Lessee shall continue the operation of its business in the Demised Premises during any such period to the extent reasonably practicable from the standpoint of prudent business management, and any obligation to Lessee under the Lease to pay Percentage Rent and any other charges except Minimum Rent shall remain in full force and nothing in this Section shall be construed to xxxxx Percentage Rent and any other charges except Minimum Rent. Except for the abatement of Minimum Rent hereinabove provided, Lessee shall not be entitled to any compensation or damage for loss in the use of the whole or any part of the Demised Premises and/or any inconvenience or annoyance occasioned by any damage, destruction, repair or restoration. Unless this Lease is terminated by Lessor, Lessee shall repair, restore and refixture all parts of the Demised Premises not insured under any insurance policies insuring Lessor in a manner and to a condition equal to that existing prior to its destruction or damage, including without limitation, all exterior signs, trade fixtures, equipment, display cases, furniture, furnishings and other installations of personality of Lessee. The proceeds of all insurance carried by Lessee on its property and improvements shall be held in trust by Lessee for the purpose of said repair and replacement. Lessee shall give to Lessor prompt written notice of any damage to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon Demised Premises resulting from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds fire or other funds held in the hands of Mortgagee or the disbursing partycasualty.
Appears in 1 contract
Samples: Shopping Center Lease (Futurus Financial Services Inc)
Damage or Destruction. Mortgagor will (a) In the event any of the Improvements are damaged by an insured casualty, Tenant promptly shall remove the debris resulting from such event, and within a reasonable time thereafter shall apply insurance proceeds to the repair or restoration of the Improvements so damaged to their condition immediately prior to such casualty, such repair or restoration to be performed in accordance with all provisions of this Lease.
(b) In the event any of the Improvements are damaged by an uninsured casualty, Tenant promptly shall remove the debris resulting from such event, and within a reasonable time thereafter shall either (i) repair or restore the Improvements so damaged, such repair or restoration to be performed in accordance with all provisions of this Lease, or (ii) erect other Improvements in such location, provided all provisions of this Lease are complied with, or (iii) demolish the damaged portion of such Improvements, restore any remaining Improvements to an architectural whole, remove all rubbish, and pave or plant grass and otherwise restore the area to a neat, orderly, sanitary and attractive condition. Tenant shall have the option to choose among the aforesaid alternatives, but Tenant shall be obligated to perform one of such alternatives. Tenant shall give Mortgagee prompt notice to Landlord within a reasonable time of which alternative it elects. Nothing contained in subsections (a) or (b) shall be construed as permitting the abatement or reduction of Rent, or the termination of this Lease.
(c) Notwithstanding anything to the contrary contained in this Lease, if (i) there is damage to or destruction of any improvements the Improvements on the Mortgaged Property or to personal property used in Leased Premises during the operation last five (5) years of the Mortgaged Property Term (including all exercised options) and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding repairing said damage or restoration destruction exceeds the cost of demolishing and removing the remaining Improvements on the Leased Premises, or (ii) there is damage to or destruction of the improvements Improvements on the Mortgaged Property. HoweverLeased Premises which (1) arises from a cause which is not required to be insured against under any provision of this Lease, if Mortgagee shall require that or (2) arises from a cause which is in fact insured against in compliance with the improvements on terms of this Lease, but for which the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding recoverable proceeds of such insurance are less than 90% of the improvements on the Mortgaged Property shall be cost to a condition of at least equal value as prior to such repair said damage or destruction, and such net proceeds of insurance shall be made available therefor under (3) the conditions and in the manner set forth below. So long as there exists no Event of Default cost to Tenant (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do which is not deny liability as to the insureds, such covered by insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding ) of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such repairing said damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to destruction exceeds the cost of rebuilding or restoration of demolishing and removing the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements remaining Improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.Leased
Appears in 1 contract
Samples: Ground Sublease (Minimed Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice Insured Destruction. If, during the term, the Leased Premises or the Building of damage to which the Leased Premises are. a part are totally or destruction of any improvements on the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss partially destroyed from a risk covered by policies of insurancethe insurance described in Section 13, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor thereby rendering the Leased Premises totally or partially inaccessible or unusable, LESSOR shall restore the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or Leased Premises so far as practicable to the cost of rebuilding or restoration of condition in which the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as Leased Premises existed immediately prior to such damage or destruction. OtherwiseIn no event shall LESSOR'S obligation include the restoration of any fixtures, such net proceeds additions or improvements installed in the Leased Premises by LESSEE. Such destruction shall not terminate this Lease. If existing laws do not permit the restoration, either party may be applied terminate this Lease immediately by Mortgagee, in its sole discretion, upon and in reduction of giving notice to the Indebtedness then most remotely to be paid in inverse chronological order, or to other party. If the cost of rebuilding or restoration of the Mortgaged Property Leased Premises or personal property. Howeverthe Building, if Mortgagee shall require of which the Leased Premises are a part exceeds the insurance proceeds received, LESSOR may elect to terminate this Lease by giving notice to LESSEE within 15 days after determining that the Mortgaged Property be repaired or rebuilt in accordance with restoration cost will exceed the insurance proceeds. If the damage and destruction only affects the floor on which the Leased Premises are located and if LESSOR elects to terminate this AgreementLease, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restorationLESSEE, repairwithin 15 days after receiving LESSOR'S notice to terminate can elect to pay LESSOR, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time LESSEE notifies LESSOR of each disbursement)its election, after first deducting the expenses difference between the amount of disbursement includinginsurance proceeds and the total cost of restoration, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by in which case LESSOR shall restore the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with Leased Premises. LESSOR shall give LESSEE satisfactory evidence of that all sums contributed by LESSEE, as provided in this Section, have been expended by LESSOR in paying the cost of completion restoration. If LESSOR elects to terminate the Lease and LESSEE does not elect to contribute toward the cost of restoration as provided in this Section, this Lease shall terminate. UNINSURED DESTRUCTION. If, during the term, the Leased Premises or the Building, of which the Leased Premises are a part are totally or partially destroyed from a risk not covered by the insurance described in Section 13, thereby rendering the Leased Premises totally or partially inaccessible or unusable, LESSOR shall restore the Leased Premises so far as practicable to its condition immediately prior to such work and damage or destruction. In no event shall LESSOR'S obligation include the restoration of any fixtures, additions or improvements installed at the Leased Premises by LESSEE. Such destruction shall not terminate this Lease. If existing, laws do not permit the restoration, either party may terminate this Lease immediately by giving notice to the other party. If the cost of restoration exceeds 5% of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, then replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands portions of the disbursing partyBuilding that are destroyed, together with funds deposited for LESSOR can elect to terminate this LEASE by giving notice to the purpose LESSEE within 15 days after determining the restoration cost and the replacement value. If the damage or irrevocably committed for such purposedestruction only affects the Building in which the Leased Premises are located and if LESSOR elects to terminate this Lease, shall be sufficient in the reasonable judgment of MortgageeLESSEE within 15 days after receiving LESSOR'S notice to terminate, can elect to pay for LESSOR at the time LESSEE notified LESSOR of its election, the difference between 5% of the then replacement value of the portions of the Building destroyed and the actual total cost of restoration, in which case LESSOR shall restore the Leased Premises. LESSOR shall give LESSEE satisfactory evidence that all sums contributed by LESSEE as provided in this Section have been expended by LESSOR in paying, the cost of completion restoration. If LESSOR elects to terminate this Lease and LESSEE does not elect to contribute towards the cost of all such restorationrestoration as provided in this Section, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof this Lease shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyterminate.
Appears in 1 contract
Samples: Office Lease Agreement (Nettaxi Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice SECTION 15.01. In case of casualty to the Building resulting in damage to or destruction exceeding $100,000 in the aggregate, Tenant shall promptly give written notice thereof to Landlord. Regardless of the amount of any improvements on such damage or destruction, Tenant shall at its sole cost and expense, and whether or not the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notesif any, shall be added to and become a part of sufficient for the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgageepurpose, upon or in reduction of the Indebtedness then most remotely to be paidrestore, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restorationreplace, replacement rebuild or rebuilding of alter the improvements on the Mortgaged Property shall be Building as nearly as possible to a its value, condition of at least equal value as and character immediately prior to such damage or destructiondestruction and in conformity with the requirements of the Ground Lease and the provisions of Article 9 hereof. Such restoration, and such net proceeds of insurance repairs, replacements, rebuilding or alterations shall be made available therefor under commenced promptly and prosecuted, with reasonable diligence.
SECTION 15.02. Subject to the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification provisions of the Leases (if any)Ground Lease, and if the Leases so require and the insurers do not deny liability as all insurance proceeds received by Landlord or any insurance trustee selected by Tenant pursuant to the insuredsSection 5.05 hereof, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding on account of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may less the actual cost, fees and expenses, if any, incurred in connection with adjustment of the loss, shall be applied by Mortgagee, in its sole discretion, upon and in reduction Landlord or such insurance trustee to pay or reimburse Tenant for the payment of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of the aforesaid demolition, restoration, repairs, replacement, rebuilding or restoration alterations, including the cost of temporary repairs or for the Mortgaged Property protection of property pending the completion of permanent restoration, repairs, replacements, rebuilding or personal property. Howeveralterations (all of which temporary repairs, if Mortgagee shall require that protection of property and permanent restoration, repairs, replacement, rebuilding or alterations are hereinafter collectively referred to as the Mortgaged Property be repaired or rebuilt in accordance with this Agreement"restoration"), such net proceeds of insurance and shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed paid out from time to time as such restoration progresses upon the written request of Tenant which shall be accompanied by the following:
(provided 1) A certificate signed by Tenant, dated not more than 30 days prior to such request, setting forth the following:
(A) That the sum then requested either has been paid by Tenant, or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons who have rendered services or furnished materials for the restoration therein specified, the names and addresses of such persons, a brief description of such services and materials, the several amounts so paid or due to each of said persons in respect thereof, that no default exists part of such expenditures has been or is being made the basis, in any previous or then pending request, for the withdrawal of insurance money or has been made out of the proceeds of insurance received by Tenant, and that the sum then requested does not exceed the value of the services and materials described in the certificate.
(B) That, except for the amount, if any, stated (pursuant to the foregoing subclause (1) (A)) in such certificate to be due for services or materials, there is no outstanding indebtedness known to the persons signing such certificate, after due inquiry, which is then due for labor, wages, materials, supplies or services in connection with such restoration. Lease, Landlord or such insurance trustee shall, out of such insurance money, pay or cause to be paid to Tenant or the persons named (pursuant to subclause (1) (A) of this Agreement Section 15.02) in such certificate the respective amounts stated therein to have been paid by Tenant or in any of to be due to them, as the Instruments or any Lease case may be. If the insurance money at the time of each disbursement)available for the purpose, after first deducting less the expenses of disbursement includingactual cost, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses expenses, if any, incurred in connection with the adjustment of the disbursing partyloss, upon shall be insufficient to pay the disbursing party being provided with entire cost of such restoration, Tenant will pay the deficiency. Upon receipt by Landlord or such insurance trustee of satisfactory evidence of the cost character required by clauses (1) and (2) of completion of such work this Section 15.02 and by the Ground Lease that the restoration has been completed and paid for in full and that there are no liens of the diligent character referred to therein, any balance of the insurance money held by Landlord or the insurance trustee selected by Tenant hereunder or to which Landlord may be entitled pursuant to the Ground Lease shall be paid to Tenant.
SECTION 15.03. If, during the last five years of the last renewal term of this lease, the Building shall be damaged or destroyed by fire or otherwise, and timely prosecution as a result thereof and with architect’s certificatesLandlord shall be entitled to terminate the Ground Lease pursuant to Paragraph Seventh thereof,
(a) nothing herein contained shall prohibit the Landlord from exercising such right of termination,
(b) Tenant shall have a corresponding right to terminate this lease; and
(c) in case of any such termination of the Ground Lease by Landlord, waivers this lease shall terminate as of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made a date one day prior to the final completion date of termination of the Ground Lease and Landlord shall give Tenant at least 30 days' prior written notice of the date of such restorationtermination. In the event of any such termination, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance any insurance proceeds payable in respect of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose damage or irrevocably committed for such purpose, destruction shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior paid over to the commencement of Ground Lessor to the work. Any surplus which may remain out of said insurance proceeds after extent required by the Ground Lease and any balance thereof shall be applied first to the payment of costs of building any other amounts owing to the Ground Lessor pursuant to said Paragraph Seventh and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or any remaining balance shall be paid to Tenant.
SECTION 15.04. Except as provided in Section 15.03 hereof, no destruction of or damage to the Demised Premises or any person part thereof by fire or persons any other casualty shall terminate or permit Tenant to surrender this lease or shall relieve Tenant from its liability to pay the full net rent and additional rent and other charges payable under this lease or from any of its other obligations under this lease, and Tenant waives any rights now or hereafter conferred upon it by statute or otherwise entitled thereto. Application to quit or release of proceeds under surrender this lease or the provisions hereof shall not cure Demised Premises or waive any default hereunder part thereof, or invalidate any act done pursuant to any notice suspension, diminution, abatement or reduction of default. No interest shall be allowed rent on account of any such proceeds destruction or other funds held in the hands of Mortgagee or the disbursing partydamage.
Appears in 1 contract
Samples: Sublease (Sl Green Realty Corp)
Damage or Destruction. Upon the occurrence of any damage or casualty to the Secured Property or any part thereof, the following shall apply:
(1) Mortgagor will shall give Mortgagee prompt written notice of such damage or casualty as soon as possible, but not later than ten (10) days from the date such damage or casualty occurs.
(2) All proceeds of insurance (“Proceeds”) paid or to be paid pursuant to any of the policies maintained pursuant to this Mortgage shall be payable to Mortgagee. Mortgagor hereby authorizes and directs any affected insurer to make payment of the Proceeds directly to Mortgagee. Mortgagee may commingle, with other monies in Mortgagee’s possession, all Proceeds received by Mortgagee. All such Proceeds shall constitute additional security for the Obligations and Mortgagor shall not be entitled to the payment of interest thereon. Mortgagee may join with Mortgagor to settle, adjust or compromise all claims for loss, damage or destruction of pursuant to any improvements on the Mortgaged Property policy or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance; provided, however, that after an Event of Default, Mortgagee is hereby authorized may solely act to make proof settle, adjust or compromise all claims for loss, damage or destruction pursuant to any policy or policies of loss if not promptly made by Mortgagor insurance.
(3) Mortgagee shall have the option, in its discretion, and without regard to the adequacy of its security hereunder, of applying all or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and Proceeds to (a) the Obligations, whether or not then due, in such order as Mortgagee shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgageedetermine, upon or in reduction of (b) the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding repair or restoration of the improvements on Secured Property, (c) reimburse Mortgagee for its costs and expenses in connection with the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding recovery of the improvements on Proceeds, or (d) any combination of the Mortgaged Property foregoing.
(4) Nothing herein contained shall be deemed to a condition of at least equal value excuse Mortgagor from repairing or maintaining the Secured Property as prior to such provided in Section 1.05 or restoring all damage or destructiondestruction to the Secured Property, regardless of whether there are Proceeds available or whether the Proceeds are sufficient in amount, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss application or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved release by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof Proceeds shall not cure or waive any Event of Default or notice of default hereunder pursuant to this Mortgage or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partynotice.
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to (a) If the Building should be totally destroyed by fire, tornado or destruction of any improvements on other casualty, or if the Mortgaged Property Building should be so damaged thereby that rebuilding or to personal property used repairs cannot in Landlord’s reasonable estimation be completed within the operation of Restoration Period, this Lease shall terminate and the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or Rent shall be abated during the lessees under any lease of any unexpired portion of the Mortgaged Property (“this Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from effective upon the date of the occurrence of such expense at damage.
(b) If the highest default rate set forth in the Notes, shall Building should be added to and become a part of the Indebtedness and shall be reimbursed damaged by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied any peril covered by Mortgagee, upon or in reduction of the Indebtedness then most remotely insurance to be paidprovided by Landlord under Section 12.01, without a prepayment fee, or but only to the cost of such extent that rebuilding or restoration of repairs can in Landlord’s estimation be completed within the improvements on the Mortgaged Property. HoweverRestoration Period, if Mortgagee this Lease shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destructionnot terminate, and such net proceeds of insurance Landlord shall be made available therefor under at its sole cost and expense thereupon proceed with reasonable diligence to rebuild and repair the conditions and Building to substantially the condition in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as which it existed prior to such damage (including damage to plate glass caused by a windstorm), except that Landlord shall not be required to rebuild, repair or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction replace any part of the Indebtedness then most remotely partitions, fixtures, additions and other improvements which may have been placed in, on or about the Premises by you except that Landlord may elect not to be paid in inverse chronological order, or to rebuild if such damage occurs during the cost of rebuilding or restoration last year of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding term of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in Lease exclusive of any of the Instruments or any Lease option which is unexercised at the time of each disbursement)such damage. If the Premises are untenantable in whole or in part following such damage, after first deducting the expenses of disbursement including, without limitation, Rent payable hereunder during the period in which they are untenantable shall be reduced to such extent as may be fair and reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses under all of the disbursing partycircumstances. If Landlord should fail to complete the repairs and rebuilding within the Restoration Period, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration you may, at your option, terminate this Lease by delivering written notice of termination to Landlord as your exclusive remedy, whereupon all rights and or obligations hereunder shall cease and terminate. Should construction be delayed because of a Force Majeure Event, the option Restoration Period shall be extended for the time Landlord is so delayed.
(c) Notwithstanding anything herein to the contrary, if a Superior Mortgagee requires that the insurance proceeds be applied to the indebtedness secured by a mortgage encumbering the Building, then Landlord shall have the right to terminate this Lease by delivering written notice of termination to you within fifteen (15) days after such requirement is made by the Superior Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof whereupon all rights and obligations hereunder shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partycease and terminate.
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt (a) Seller’s Notice of Damage; Closing Date If, prior to the Closing, any of the Improvements or Personal Property are destroyed or damaged by fire or other casualty, Seller shall provide Buyer with written notice of damage to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation such event within ten (10) days of the Mortgaged Property damage, which notice shall include the reasonably estimated cost of repair or replacement and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion written confirmation of the Mortgaged Property amount of insurance proceeds Seller’s insurer has agreed to pay as a result of such loss, as evidenced by written confirmation from such insurer (collectively, “Lease” or “LeasesSeller’s Damage Notice”). Any expenses incurred by Mortgagee in In the collection event of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to any such damage or destruction, and such net proceeds provided Xxxxx has not elected to terminate this Contract as permitted herein, the Closing shall occur on the later of insurance shall be made available therefor under (i) the conditions and date the Closing would have been required to occur in the manner set forth below. So long as there exists no Event absence of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction (ii) thirty (30) days following Xxxxx’s receipt of Seller’s notice of the Indebtedness then most remotely casualty as required above.
(b) Repair Cost $250,000 or Less If such damage is required hereunder to be insured against by Seller and the repair or replacement of the damaged Property would cost Two Hundred Fifty Thousand Dollars ($250,000.00) or less, (i) Buyer shall proceed with the Closing, (ii) Seller shall assign the all risk casualty insurance proceeds to Buyer and (iii) Buyer shall be credited with the amount of (A) any insurance deductibles not paid by Seller for repairs prior to Closing, (B) any insurance proceeds paid to Seller prior to Closing, and (C) in inverse chronological orderthe event that Seller fails to maintain the all risk casualty insurance required pursuant to Section 10.1, all uninsured restoration expenses which would have been covered by such insurance had the same been maintained by Seller. If the damage is not required to be insured against by Seller and Seller does not elect to credit Buyer at Closing with the uninsured restoration expenses (which election shall be set forth in Seller’s Damage Notice), Buyer may elect to terminate the Contract by written notice to Seller within ten (10) days following Xxxxx’s receipt of Seller’s Damage Notice or proceed to Closing without a credit for such uninsured restoration expenses. If Buyer timely elects to terminate this Contract as aforesaid, then the Escrow Money shall be returned to Buyer and neither party shall have any further liability hereunder (except for that which by the express terms of this Contract is intended to survive such termination). In the event Buyer elects to proceed with Closing notwithstanding the existence of uninsured restoration expenses which Seller is not required to, and has not elected to, credit to Buyer at the Closing, Buyer shall thereafter have no right to require Seller to pay or reimburse any such expenses.
(c) Repair Cost Over $250,000 If the cost of rebuilding such repair or restoration exceeds Two Hundred Fifty Thousand Dollars ($250,000.00), then Buyer shall have the option, which must be exercised by it within twenty (20) days after its receipt of Seller’s Damage Notice, to either terminate this Contract or proceed with the Closing. If Buyer elects to terminate this Contract, then the Escrow Money shall be returned to Buyer and neither party shall have any further liability hereunder (except for that which by the express terms of this Contract is intended to survive such termination). If Buyer elects to proceed with the Closing, then, as conditions to Closing, (i) Seller shall take such action as is necessary to assign all of the Mortgaged Property or personal property. Howeverall risk casualty insurance proceeds and Seller’s right to receive same to Buyer prior to Closing, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance and (ii) Buyer shall be made available therefor under the conditions credited with (A) any insurance deductibles not paid by Seller for repairs prior to Closing, (B) any insurance proceeds paid to Seller prior to Closing, and (C) in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of event that Seller fails to maintain the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said risk casualty insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done required pursuant to any notice of default. No interest shall be allowed on account of any Section 10.1, all uninsured restoration expenses which would have been covered by such proceeds or other funds held in insurance had the hands of Mortgagee or the disbursing partysame been maintained by Seller.
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice (a) Subject to the provisions of subsection (b) below, Buyer shall be bound to purchase the Property for the Purchase Price as required by the terms of this Agreement without regard to the occurrence during the Contract Period of any damage to or destruction of the Improvements ("Contract Period Damage"). Buyer shall receive a credit in escrow in the amount of any improvements insurance proceeds (net of reasonable costs incurred in securing such proceeds) collected by Seller prior to the Closing Date as a result of any Contract Period Damage and not expended by Seller on repair, replacement or restoration of the Mortgaged Property pursuant to subsection (c) below. Seller promptly shall deliver to Buyer any such insurance proceeds as shall be collected by Seller following the Closing Date.
(b) Notwithstanding the foregoing, if the cost of repair, replacement or restoration of the Property attributable to any Contract Period Damage exceeds Two Hundred Thousand Dollars ($200,000), either party may elect to terminate this Agreement by written notice to the other given not more than ten (10) days following the event of damage or destruction and not later than one day prior to the Closing Date. If the Contract Period Damage arises out of an uninsured risk, Seller shall elect, by written notice given within such 10-day period, either to terminate this Agreement or to personal property used close escrow as contemplated in this Agreement with a reduction in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or Purchase Price equal to the cost of rebuilding repair, replacement or restoration of the improvements on the Mortgaged Property. HoweverUpon termination of this Agreement pursuant to this paragraph, if Mortgagee Seller shall require that return to Buyer the improvements on Deposit. In the Mortgaged event neither party timely elects to terminate this Agreement pursuant to this subsection, the provisions of subsection (a) above shall be applicable.
(c) Upon the occurrence of any Contract Period Damage, Seller may, but shall not be obligated to, use any insurance proceeds collected with respect to such Contract Period Damage to repair, replace or restore the Property be repaired or rebuilt, then to the extent reasonably feasible prior to the Closing Date. Seller's election to commence the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property prior to the Closing Date shall in no way imply that Seller has made any representation or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt warranty with respect to any work performed in accordance connection with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding restoration ("Seller's Repairs"). The plans, materials, choice of contractor and all other material aspects of the improvements on the Mortgaged Property performance of Seller's Repairs shall be disbursed from time subject to time Buyer's review and approval (provided no default exists which shall not be unreasonably withheld) and to the general disclaimer set forth in Section 2.3 above. In the event that Buyer does not approve any aspect of Seller's Repairs in writing within five (5) days following Seller's request for such approval, Seller may, at its option, terminate this Agreement by written notice delivered to Buyer on or before the Closing Date.
(d) Notwithstanding anything in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restorationcontrary, repairthe insurance proceeds to be credited or delivered to Buyer pursuant to this Section 7.1 shall exclude business interruption or rental loss insurance proceeds, replacement or rebuilding shall exceed ninety percent (90%) of if any, allocable to the value of period through the work performed from time to time and at all times the undisbursed balance of such Closing Date, which proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved retained by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partySeller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Metric Income Trust Series Inc)
Damage or Destruction. Mortgagor will 15.1 In case of casualty to the Demised Premises or any Improvement, Sublessee shall promptly give Mortgagee prompt written notice thereof to Sublessor. Regardless of damage to the scope or destruction amount of any improvements on such damage or destruction, this Sublease shall remain in full force and effect, and Sublessee shall not be entitled to any diminution or abatement of rent. Sublessee, at its sole cost and expense, except as otherwise provided in this Section 15, and whether or not the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notesif any, shall be added to and become a part of sufficient for the Indebtedness and purpose, shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgageeeither (i) restore, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restorationreplace, replacement or rebuilding of rebuild the improvements on the Mortgaged Property shall be same as nearly as possible to a their value, condition of at least equal value as and character immediately prior to such damage or destruction or with such changes or alterations as may be made at Sublessee's election in conformity with and subject to the conditions of Section 10 hereof; or (ii) demolish the Improvements and construct new Improvements in replacement thereof in conformity with and subject to the conditions of Section 10 hereof. Such restoration, repairs, replacements, rebuilding, alterations or demolition and new construction shall be commenced within a reasonable time after such damage or destruction and prosecuted with reasonable diligence, unavoidable delays excepted.
15.2 All insurance money paid to Sublessee or to any Authorized Institution on account of such damage or destruction, less the actual costs, fees and such net proceeds of insurance shall be made available therefor under the conditions and expenses, if any, incurred in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification connection with adjustment of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collectionloss, shall be made available under applied by Sublessee or such Authorized Institution to the conditions payment of the cost of the aforesaid restoration, repairs, replacement or rebuilding, or demolition and in new construction, including the manner specified in the following paragraph, cost of temporary repairs or for the repairprotection of property pending the completion of permanent restoration, repairs, replacements or rebuilding (all of which temporary repairs, protection of property and permanent restoration, repairs, replacement or rebuilding of improvements on are hereinafter collectively referred to as the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction"restoration"). Otherwise, such net Such insurance proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (as such restoration progresses; provided no default exists that the work for which payment is requested has been done in a good and workmanlike manner and substantially in accordance with the plans and specifications therefor, if any. In the event that the insurance proceeds are held by an Authorized Institution, such disbursement shall be made in conformance with and pursuant to the provisions set forth in the loan documents executed by Sublessee for the benefit of such Authorized Institution, subject, however, to the requirement that Sublessee or in this Agreement such Authorized Institution provides to Sublessor, prior to any such disbursement, mechanic's lien releases for all work performed by any contractor, subcontractor, laborer, materialman, supplier or in any other persons having a lien right under the laws of the Instruments or State of Colorado for work performed prior to the date of such disbursement. Further, in the event that any Lease insurance proceeds are being held by Sublessee, Sublessee, in such event prior to such disbursement, shall provide Sublessor mechanic's lien releases for all work performed prior to such disbursement as required above.
15.3 If the insurance money at the time of each disbursement), after first deducting then held by Sublessee or any Authorized Institution shall be insufficient to pay the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the entire cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair(i) Sublessee will pay the deficiency to such Authorized Institution within thirty (30) days of notice of such deficiency to Sublessee; or (ii) if no Authorized Institution is holding such insurance proceeds, replacement Sublessee shall directly pay to contractors, subcontractors, laborers, materialmen, suppliers or rebuilding shall exceed ninety percent (90%) other persons having a lien right under the laws of the value State of Colorado the work performed from time to time and at all times the undisbursed balance amount of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee deficiency prior to the commencement of the work. Any surplus which may remain out of said using any insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds being held in the hands of Mortgagee or the disbursing partyby it.
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice (a) Tenant agrees that in the event of damage to or destruction of the Facilities, or any improvements on the Mortgaged Property part thereof, by fire or to personal property used other casualty, Tenant shall immediately notify Landlord. Tenant agrees that in the operation event of damage to or destruction of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment feeToledo Facility, or to any part thereof, by fire or other casualty, Tenant shall immediately notify Landlord, the cost of rebuilding or Toledo-Lucas County Port Authority and the IRB Lease Trustee.
(b) Tenant shall effect the prompt repair and restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be Facilities to a condition of at least equal value as to the condition immediately prior to such damage or destruction.
(c) In the event of damage or destruction to the Toledo Facility, and all insurance money paid on account of such net proceeds of insurance damage or destruction shall be made available therefor under applied to the conditions repair, rebuilding or restoration of the Premises by the Tenant. If the insurance money is insufficient to pay all costs of restoration, Tenant shall pay the deficiency and proceed to complete the restoration and pay the cost thereof. Any balance of the insurance proceeds remaining over and above the cost of the restoration shall be paid into the Bond Fund (as such term is defined in the manner set forth belowIRB Lease) pursuant to the IRB Lease.
(d) Tenant's obligation to make payment of the rent and all other covenants to be performed by Tenant shall not be affected by any such damage or destruction. So long as there exists no Event Tenant hereby waives the provisions of Default any statute now or hereafter in effect contrary to such obligation or which releases Tenant therefrom. Notwithstanding the foregoing, in the event that the Threshold (as defined in the Loan Marketing Agreement), and provided any loss ) is renegotiated or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification adjusted pursuant to Section 6.6 of the Leases (if any)Marketing Agreement, and if Tenant's obligation to make payment of rent shall be reduced by the Leases so require and the insurers do not deny liability same percentage as applied to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available Threshold under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction Section 6.6 of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Marketing Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.
Appears in 1 contract
Samples: Lease Agreement (Andersons Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice (a) If the Premises is damaged by any cause required to be covered by insurance pursuant to Article 18, Tenant, at its sole expense, shall forthwith repair, restore, and rebuild the same with all reasonable dispatch and diligence, so far as practicable and lawful, to a complete unit of like quality, character, and condition and the same layout and parking to rentable square foot ratio as that which existed immediately prior to the damage. Tenant shall be entitled to the use of insurance proceeds available from insurance covering such damage to or destruction the extent of any improvements on the Mortgaged Property or actual cost of such repair. Said repair, restoration and rebuilding shall be constructed in accordance with plans and specifications approved in writing by Landlord, prepared by a licensed architect selected and employed by Tenant and approved in writing by Landlord, and performed by a licensed general contractor approved in writing by Landlord. None of the approvals to personal property used be obtained from Landlord in the operation previous sentence shall be unreasonably withheld. During such repair, restoration or rebuilding Landlord shall at all times have access to the Premises for the purpose of making inspections of the Mortgaged Property and work in case of loss covered by policies of insuranceprogress.
(b) If Tenant does not either:
(i) Obtain a building permit for any repairs, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor rebuilding or the lessees under any lease of any portion of the Mortgaged Property restoration required hereunder within three (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon 3) months from the date of such expense damage or destruction, or
(ii) Complete such repairs, rebuilding or restoration and comply with the conditions in Article XI(B) below for the resumption of rent and other payments by Tenant within six (6) months after the date of such damage or destruction, then in either event Landlord may at any time thereafter cancel and terminate this Lease by sending ninety (90) days written notice thereof to Tenant, except however said notice of cancellation shall not be effective if Tenant within said ninety (90) day period shall obtain such permit or complete and comply as aforesaid, as the highest default rate set forth case may be.
(a) In the event that the Premises is damaged to the extent that it is not reasonably suitable for the normal conduct of Tenant's business materially as carried on prior to said damage, and despite such damage, Tenant elects to continue occupancy of the Premises, then from the date of such damage until completion of repair, restoration, and rebuilding, there shall be an equitable adjustment in Rent, and any imposition and charges, including but not limited to real estate taxes, insurance and maintenance expenses, taking into account the Notesinterference with Tenant's normal conduct of business and loss of profit resulting therefrom. If Tenant elects to discontinue occupancy because the the Premises are not reasonably suitable for the normal conduct of Tenant's business materially as carried on prior to said damage, then the Rent and any impositions and charges, including but not limited to real estate taxes, insurance and maintenance expenses, shall completely abate during the period of repair. Notwithstanding anything herexx xx the contrary, Tenant shall only be added entitled to and become a part an abatement of the Indebtedness Rent to the extent that Landlord receives payment of the proceeds of any rent insurance in lieu of Rent.
(b) Tenant shall not be required to accept delivery of possession of the Premises and to commence payment of Rent and other charges payable by Tenant to Landlord hereunder until the earlier of (i) the date on which Tenant recommences to conduct business on the entire Premises, or (ii) sixty (60) days after the date on which the last of all the following events have occurred:
(i) The architect in charge of the construction on the Premises certifies in writing to Tenant that said construction has been completed in strict accordance with the approved plans and specifications;
(ii) A certificate of occupancy or an equivalent use permit, and all other requisite permits necessary for Tenant to conduct business on the Premises and for the public to have access to the Premises are issued by the appropriate legal authorities issuing same (Landlord shall deliver to Tenant certified or photostatic copies of same); and
(iii) If the location of the foundations or exterior walls has been changed, Landlord delivers to Tenant an as-built survey of the restored Premises.
C. If more than one-third (1/3) of the improvements upon the Premises are destroyed and such destruction occurs within the last one (1) year of the initial Lease Term to such an extent that Tenant shall be reimbursed by Mortgagor unable to Mortgagee immediately upon demand. Such net proceeds conduct business on the Premises, Tenant at its option may be applied by Mortgagee, upon or in reduction terminate this Lease effective as of the Indebtedness then most remotely to be paid, without a prepayment fee, or date of such casualty by giving to the cost Landlord within thirty (30) days after the occurrence of such casualty, written notice of such termination. If said notice be given within said thirty (30) day period by Tenant, this Lease shall terminate and Tenant shall assign to Landlord all of Tenant's claim or interest in and to insurance proceeds otherwise allowable for the repair and restoration of said improvements.
(a) If Tenant fails or is unable to obtain a building permit for repairs, rebuilding or restoration of the improvements on Premises within three (3) months from the Mortgaged Property. Howeverdate damage occurs, if Mortgagee Landlord shall require have the right to apply for that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property permit and Tenant shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, cooperate with Landlord in its sole discretion, upon and in reduction of application.
(b) If Tenant stops the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property Premises or personal property. Howeverif Landlord obtains a building permit pursuant to Article XI(D)(a) above, if Mortgagee shall require that Landlord may take over the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding restoration of the improvements Premises. If Landlord elects to take over the restoration of the Premises, Tenant shall:
(i) Turn over all insurance proceeds in its possession to Landlord and assign to Landlord its right to all uncollected insurance proceeds and all insurance proceeds held by or for the benefit of the holder of the beneficiary's interest under a deed of trust encumbering the Premises; and
(ii) (Assign to Landlord its rights under contracts with the architect and general contractor with respect to the work done and to be done on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyPremises.
Appears in 1 contract
Samples: Lease (Wickes Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice In the event of any damage to or destruction of to the Premises by fire or other cause during the term hereof, the following provisions shall apply:
a. If the Building is damaged by fire or any improvements on the Mortgaged Property or other cause to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to extent that the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement as estimated by Landlord, will equal or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety fifty percent (9050%) of the replacement value of the work performed from time Building (exclusive of foundations) just prior to time and at all times the undisbursed balance of such proceeds remaining in the hands occurrence of the disbursing partydamage, together with funds deposited then Landlord may, not later than the sixtieth (60th) day following the damage, give Tenant written notice of Landlord’s election to terminate this Lease.
b. If the cost of restoration as estimated by Landlord will equal or exceed fifty percent (50%) of said replacement value of the Building and if the Demised Premises are not suitable as a result of said damage for the purpose or irrevocably committed purposes for such purposewhich they are demised hereunder, shall be sufficient in the reasonable judgment opinion of MortgageeLandlord and Tenant, then Tenant may, no later than the sixtieth (60th) day following the damage, give Landlord a written notice of election to pay for terminate this Lease.
c. If the cost of completion restoration as estimated by Landlord shall amount to less than fifty percent (50%) of said replacement value of the Building, or if, despite the cost, Landlord does not elect to terminate this Lease, Landlord shall restore the Building and the Demised Premises with reasonable promptness, subject to delays beyond Landlord’s control and delays in the making of insurance adjustments by Landlord; and Tenant shall have no right to terminate this Lease except as herein provided. Landlord shall not be responsible for restoring or repairing leasehold improvements of Tenant.
d. In the event either of the elections to terminate is properly exercised, this Lease shall be deemed to terminate on the date of the receipt of the notice of election and all such restoration, repair, replacement or rebuildingrentals shall be paid up to that date. Mortgagee may require that plans and specifications Tenant shall have no claim against Landlord for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior value of any unexpired term of this Lease.
e. In any case where damage to the commencement Building shall materially affect the Demised Premises so as to render them unsuitable in whole or in part for the purposes for which they are demised hereunder, then, unless such destruction was wholly or partially caused by the negligence or breach of the work. Any surplus which may remain out terms of said insurance proceeds after payment of costs of building and restoration maythis Lease by Tenant, at the option of Mortgageeits employees, be applied either on account contractors or licensees, a portion of the Indebtedness then most remotely rent based upon the amount of the extent to which the Demised Premises are rendered unsuitable shall be paid in inverse chronological orderabated until repaired or restored. If the destruction or damage was wholly or partially caused by negligence or breach of the terms of this Lease by Tenant as aforesaid and if Landlord shall elect to rebuild, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof rent shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest xxxxx and Tenant shall be allowed on account of any such proceeds or other funds held in remain liable for the hands of Mortgagee or the disbursing partysame.
Appears in 1 contract
Samples: Commercial Lease (EnteroMedics Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice SECTION 15.01. In case of casualty to the Building resulting in damage to or destruction exceeding $100,000 in the aggregate, Sub-subtenant shall promptly give written notice thereof to Sub-sublandlord. Regardless of the amount of any improvements on such damage or destruction, Sub-subtenant shall at its sole cost and expense, and whether or not the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notesif any, shall be added to and become a part of sufficient for the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgageepurpose, upon or in reduction of the Indebtedness then most remotely to be paidrestore, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restorationreplace, replacement rebuild or rebuilding of alter the improvements on the Mortgaged Property shall be Building as nearly as possible to a its value, condition of at least equal value as and character immediately prior to such damage or destructiondestruction and in conformity with the requirements of the Ground Lease, the Mesne Lease, the Operating Lease and such net proceeds the provisions of insurance Article 9 hereof. Such restoration, repairs, replacements, rebuilding or alterations shall be made available therefor under commenced promptly and prosecuted with reasonable diligence.
SECTION 15.02. Subject to the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification provisions of the Leases (if any)Ground Lease, and if the Leases so require Mesne Lease and the insurers do not deny liability as Operating Lease, all insurance proceeds received by Sub-sublandlord or any insurance trustee selected by Sublessor pursuant to Section 5.05 of the insuredsOperating Lease, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding on account of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may less the actual cost, fees and expenses, if any, incurred in connection with adjustment of the loss, shall be applied by Mortgagee, in its sole discretion, upon and in reduction Sub-sublandlord or such insurance trustee to pay or reimburse Sub-subtenant for the payment of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of the aforesaid demolition, restoration, repairs, replacement, rebuilding or restoration alterations, including the cost of temporary repairs or for the Mortgaged Property protection of property pending the completion of permanent restoration, repairs, replacements, rebuilding or personal property. Howeveralterations (all of which temporary repairs, if Mortgagee shall require that protection of property and permanent restoration, repairs, replacements, rebuilding or alterations are hereinafter collectively referred to as the Mortgaged Property be repaired or rebuilt in accordance with this Agreement"restoration"), such net proceeds of insurance and shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed paid out from time to time as such restoration progresses upon the written request of Sub-subtenant which shall be accompanied by the following:
(provided 1) A certificate signed by Sub-subtenant, dated not more than thirty days prior to such request, setting forth the following:
(A) That the sum then requested either has been paid by Sub-subtenant, or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons who have rendered services or furnished materials for the restoration therein specified, the names and addresses of such persons, a brief description of such services and materials, the several amounts so paid or due to each of said persons in respect thereof, that no default exists in part of such expenditures has been or is being made the or in this Agreement or basis, in any previous or then pending request, for the withdrawal of insurance money or has been made out of the Instruments or any Lease at the time proceeds of each disbursement)insurance received by Sub-subtenant, after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall sum then requested does not exceed ninety percent (90%) of the value of the work performed from time services and materials described in the certificate.
(B) That, except for the amount, if any, stated (pursuant to time and at all times the undisbursed balance foregoing subclause (1) (A)) in such certificate to be due for services or materials, there is no outstanding indebtedness known to the persons signing such certificate, after due inquiry, which is then due for labor, wages, materials, supplies or services in connection with such restoration.
(C) That the cost, as estimated by the persons signing such certificate, of the restoration required to be done subsequent to the date of such proceeds certificate in order to complete the same, does not exceed the insurance money, plus any amount deposited by Sub-subtenant to defray such cost and remaining in the hands of Sub-sublandlord or such insurance trustee after payment of the disbursing partysum requested in such certificate.
(2) A title company or official search, together or other evidence satisfactory to Sub-sublandlord or the insurance trustee, showing that there have not been filed with funds deposited respect to the Demised Premises, any vendor's, contractor's, mechanic's, laborer's or materialman's statutory or similar lien which has not been discharged of record, except such as will be discharged upon payment of the sum requested in such certificate.
(3) An opinion of counsel (who may be counsel to Sub-subtenant) stating that the instruments which have been or are therewith delivered to Sub-sublandlord or to such insurance trustee conform to the requirements of the foregoing clauses (1) and (2) of this Section and that, upon the basis of such request, the insurance proceeds, the withdrawal of which is then requested, may be properly paid over under this Section. The certificate required by clause (1) of this Section 15.02 shall be signed also by the architect and/or engineer in charge of the restoration, who shall be selected by Sub-subtenant and approved in writing by Landlord, Sublessor and Sub-sublandlord (Sublessor having agreed with Sub-sublandlord that its approval shall not be unreasonably withheld, Sub-sublandlord shall request such approval by Sublessor and agrees that it shall not unreasonably withhold Sub-sublandlord's approval thereof) and (in the case of proceeds of insurance provided for in Section 5.01) by the Ground Lessor. Upon compliance with the foregoing provisions of this Section 15.02 and with the requirements of the Ground Lease, Sub-sublandlord or such insurance trustee shall, out of such insurance money, pay or cause to be paid to Sub-subtenant or the persons named (pursuant to sub-clause (1) (A) of this Section 15.02) in such certificate the respective amounts stated therein to have been paid by Sub-subtenant or to be due to them, as the case may be. If the insurance money at the time available for the purpose or irrevocably committed for such purpose, less the actual cost, fees and expenses, if any, incurred in connection with the adjustment of the loss shall be sufficient in the reasonable judgment of Mortgagee, insufficient to pay for the entire cost of completion of all such restoration, repairSub-subtenant shall pay the deficiency. Upon receipt by Sub-sublandlord or such insurance trusttee of satisfactory evidence of the character required by clauses (1) and (2) of this Section 15.02 that the restoration has been completed and paid for in full and that there are no liens of the character referred to therein or Events of Default hereunder, replacement any balance of the insurance money held by Sub-sublandlord or rebuildingsuch insurance trustee or to which Sub-sublandlord may be entitled pursuant to the Operating Lease shall be paid to Sub-subtenant.
SECTION 15.03. Mortgagee may require that plans If, during the last five years of the last renewal term of this lease, the Building shall be damaged or destroyed by fire or otherwise, and specifications for as a result thereof Sub-sublandlord shall be entitled to terminate the restorationOperating Lease pursuant to Section 15.03 thereof,
(a) nothing herein contained shall prohibit the Sub-sublandlord from exercising such right of termination,
(b) Sub-subtenant shall have a corresponding right to terminate this lease; and
(c) in case of any such termination of the Operating Lease by Sublessor or Sub-sublandlord, repair, replacement or rebuilding be submitted to and approved by Mortgagee this lease shall terminate as of a date prior to the commencement date of termination of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building Operating Lease and restoration may, Sub-sublandlord shall give Sub-subtenant at the option of Mortgagee, be applied either on account least fifteen days' prior written notice of the Indebtedness then most remotely date of such termination.
SECTION 15.04. Except as provided in Section 15.03 hereof, no destruction of or damage to the Demised Premises or any part thereof by fire or any other casualty shall terminate or permit Sub-subtenant to surrender this lease or shall relieve Sub-subtenant from its liability to pay the full rent, additional rent and other charges payable under this lease, except to the extent that the same shall be paid in inverse chronological order, without a prepayment feeby the application thereto of the proceeds of rent insurance pursuant to Paragraph (d) of Section 5.02 hereof, or be paid from any of its other obligations under this lease, and Sub-subtenant waives any rights now or hereafter conferred upon it by statute or otherwise to quit or surrender this lease or the Demised Premises or any part thereof, or to any person Suspension, diminution, abatement or persons otherwise entitled thereto. Application or release reduction of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed rent on account of any such proceeds destruction or other funds held in the hands of Mortgagee or the disbursing partydamage.
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice SECTION 15.01. In case of casualty to the Building resulting in damage to or destruction exceeding $100,000 in the aggregate, Sublessee shall promptly give written notice thereof to Sublessor. Regardless of the amount of any improvements on such damage or destruction, Sublessee shall at its sole cost and expense, and whether or not the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notesif any, shall be added to and become a part of sufficient for the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgageepurpose, upon or in reduction of the Indebtedness then most remotely to be paidrestore, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restorationreplace, replacement rebuild or rebuilding of alter the improvements on the Mortgaged Property shall be Building as nearly as possible to a its value, condition of at least equal value as and character immediately prior to such damage or destructiondestruction and in conformity with the requirements of the Ground Lease, the Mesne Lease and such net proceeds the provisions of insurance Article 9 hereof. Such restoration, repairs, replacements, rebuilding or alterations shall be made available therefor under commenced promptly and prosecuted with reasonable diligence.
SECTION 15.02. Subject to the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification provisions of the Leases (if any), and if the Leases so require Ground Lease and the insurers do not deny liability as Mesne Lease, all insurance proceeds received by Sublessor or any insurance trustee selected by Sublessor pursuant to the insuredsSection 5.05 hereof, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding on account of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may less the actual cost, fees and expenses, if any, incurred in connection with adjustment of the loss, shall be applied by Mortgagee, in its sole discretion, upon and in reduction Sublessor or such insurance trustee to pay or reimburse Sublessee for the payment of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of the aforesaid demolition, restoration, repairs, replacement, rebuilding or restoration alterations, including the cost of temporary repairs or for the Mortgaged Property protection of property pending the completion of pemanent restoration, repairs, replacements, rebuilding or personal property. Howeveralterations (all of which temporary repairs, if Mortgagee shall require that protection of property and permanent restoration, repairs, replacement, rebuilding or alterations are hereinafter collectively referred to as the Mortgaged Property be repaired or rebuilt in accordance with this Agreement"restoration"), such net proceeds of insurance and shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed paid out from time to time as such restoration progresses upon the written request of Sublessee which shall be accompanied by the following:
(provided 1) A certificate signed by Sublessee, dated not more than 30 days prior to such request, setting forth the following:
(A) That the sum then requested either has been paid by Sublessee, or is justly due to contractors, subcontractors, materialmen, engineers, architects, or other persons who have rendered services or furnished materials for the restoration therein specified, the names and addresses of such persons, a brief description of such services and materials, the several amounts so paid or due to each of said persons in respect thereof, that no default exists in part of such expenditures has been or is being made the or in this Agreement or basis, in any previous or then pending request, for the withdrawal of insurance money or has been made out of the Instruments or any Lease at the time proceeds of each disbursement)insurance received by Sublessee, after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall sum then requested does not exceed ninety percent (90%) of the value of the work performed from time services and materials described in the certificate.
(B) That, except for the amount, if any, stated (pursuant to time and at all times the undisbursed balance foregoing subclause (1) (A)) in such certificate to be due for services or materials, there is no outstanding indebtedness known to the persons signing such certificate, after due inquiry, which is then due for labor, wages, materials, supplies or services in connection with such restoration.
(C) That the cost, as estimated by the persons signing such certificate, of the restoration required to be done subsequent to the date of such proceeds certificate in order to complete the same, does not exceed the insurance money, plus any amount deposited by Sublessee to defray such cost and remaining in the hands of Sublessor or such insurance trustee after payment of the disbursing partysum requested in such certificate.
(2) A title company or official search, together or other evidence satisfactory to Sublessor or the insurance trustee, CON 5024 PAGE 572 47 showing that there have not been filed with funds deposited respect to the Demised Premises, any vendor's, contractor's, mechanic's, laborer's or materialman's statutory or similar lien which has not been discharged of record, except such as will be discharged upon payment of the sum requested in such certificate.
(3) An opinion of counsel (who may be counsel to Sublessee) stating that the instruments which have been or are therewith delivered to Sublessor or to such insurance trustee conform to the requirements of the foregoing clauses (1) and (2) of this Section and that, upon the basis of such request, the insurance proceeds, the withdrawal of which is then requested, may be properly paid over under this Section. The certificate required by clause (1) of this Section 15.02 shall be signed also by the architect and/or engineer in charge of the restoration, who shall be selected by Sublessee and approved in writing by Landlord and by Sublessor (which approval of Sublessor shall not be unreasonably withheld) and (in the case of proceeds of insurance provided for in Section 5.01) by the Ground Lessor. Upon compliance with the foregoing provisions of this Section 15.02 and with the requirements of the Ground Lease, Sublessor or such insurance trustee shall, out of such insurance money, pay or cause to be paid to Sublessee or the persons named (pursuant to subclause (1) (A) of this Section 15.02) in such certificate the respective amounts stated therein to have been paid by Sublessee or to be due to them, as the case may be. If the insurance money at the time available for the purpose or irrevocably committed for such purpose, less the actual cost, fees and expenses, if any, incurred in connection with the adjustment of the loss, shall be sufficient in the reasonable judgment of Mortgagee, insufficient to pay for the entire cost of completion of all such restoration, repairSublessee shall pay the deficiency. Upon receipt by Sublessor or such insurance trustee of satisfactory evidence of the character required by clauses (1) and (2) of this Section 15.02 that the restoration has CON 5024 PAGE 573 48 been completed and paid for in full and that there are no liens of the character referred to therein, replacement any balance of the insurance money held by Sublessor or rebuildingsuch insurance trustee or to which Sublessor may be entitled pursuant to the Mesne Lease shall be paid to Sublessee.
SECTION 15.03. Mortgagee may require that plans If, during the last five years of the last renewal term of this lease, the Building shall be damaged or destroyed by fire or otherwise, and specifications for as a result thereof Sublessor shall be entitled to terminate the restorationMesne Lease pursuant to Section 15.03 thereof,
(a) nothing herein contained shall prohibit the Sublessor from exercising such right of termination,
(b) Sublessee shall have a corresponding right to terminate this lease; and
(c) in case of any such termination of the Mesne Lease by Landlord or Sublessor, repair, replacement or rebuilding be submitted to and approved by Mortgagee this lease shall terminate as of a date prior to the commencement date of termination of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building Mesne Lease and restoration may, Sublessor shall give Sublessee at the option of Mortgagee, be applied either on account least 20 days' prior written notice of the Indebtedness then most remotely date of such termination.
SECTION 15.04. Except as provided in Section 15.03 hereof, no destruction of or damage to be paid in inverse chronological orderthe Demised Premises or any part thereof by fire or any other casualty shall terminate or permit Sublessee to surrender this lease or shall relieve Sublessee from its liability to pay the full basic rent and additional rent and other charges payable under this lease or from any of its other obligations under this lease, without a prepayment feeand Sublessee waives any rights now or hereafter conferred upon it by statute or otherwise to quit or surrender this lease or the Demised Premises or any part thereof, or be paid to any person suspension, diminution, abatement or persons otherwise entitled thereto. Application or release reduction of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed rent on account of any such proceeds destruction or other funds held in the hands of Mortgagee or the disbursing party.damage. CON 5024 PAGE 574
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to or destruction (a) Promptly, and in any case within two (2) Business Days after the occurrence thereof, Borrower shall notify Agent of any improvements on the Mortgaged Property fire or other Casualty with respect to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property Premises. Within five (“Lease” or “Leases”)5) Business Days after the occurrence of such Casualty, Borrower shall provide Agent with a general description of the nature and extent of such Casualty and set forth Borrower’s good faith estimate of the cost of Restoration as of such date.
(b) Agent shall be entitled to receive all insurance proceeds payable with respect to the Premises on account of a Casualty. Any expenses incurred by Mortgagee in the collection Borrower hereby irrevocably assigns, transfers and sets over to Agent all rights of Borrower to any such insurance proceeds, award or payment. Borrower hereby irrevocably authorizes and empowers Agent, in the name of Borrower or otherwise, to file for and prosecute in its own name what would otherwise be Borrower’s claim for any such insurance proceeds. Notwithstanding the foregoing, so long as no Default or Event of Default shall have occurred and shall then be continuing and provided Borrower promptly files all claims and diligently prosecutes same, Borrower shall have the right to file, adjust, settle and prosecute any claim for such insurance proceeds; provided, however, that Borrower shall not agree to any adjustment or settlement of any such claim payable with respect to a Casualty the insurance proceeds with respect to which are greater than $1,000,000 (the “Casualty Proceeds Disbursement Threshold”) without Agent’s prior consent. Borrower shall promptly after demand pay to Agent all reasonable costs and expenses (including the fee of any insurance consultant or adjuster and reasonable attorneys’ fees and disbursements) incurred by Agent in connection with a Casualty and seeking and obtaining any insurance proceeds, award or payment with respect thereto. Net Proceeds held by Agent, together with any interest thereon from earned thereon, shall constitute additional security for the date payment of the Obligations (a security interest therein being granted hereby) until disbursed in accordance with this Section 5.12 or Section 5.14 hereof, as the case may be. Notwithstanding the foregoing, or anything else herein, to the contrary, all proceeds of business interruption/rent loss insurance may be collected by and shall be paid to Agent and applied in accordance with Section 5.12(g) hereof.
(c) Borrower shall use all Net Proceeds actually received by Borrower for the Restoration, provided that if any such Net Proceeds remains after the completion of such expense Restoration, Borrower shall apply same to the Loan as a prepayment thereof in accordance with Section 2.4(f) hereof promptly after completion of such Restoration. Borrower shall, at its sole cost and expense, promptly commence and diligently and continuously perform to completion the highest default rate set forth Restoration in a good and workmanlike manner and in compliance in all material respects with all Legal Requirements and the Notesrequirements of the Permitted Encumbrances, Premises Documents, the Management Agreement and the Franchise Agreement, whether or not Borrower shall have satisfied the requirements of Section 5.12(d) hereof in order to cause the Net Proceeds to be made available for such Restoration and whether or not such insurance proceeds on account of the Casualty shall be added sufficient for such purpose.
(d) In the case of any Casualty with respect to and become which the insurance proceeds payable are equal to or greater than the Casualty Proceeds Disbursement Threshold, the Net Proceeds shall be held by Agent, if Agent so elects, as a part of the Indebtedness Collateral and shall be reimbursed applied or dealt with by Mortgagor Agent as follows:
(i) Subject to Mortgagee immediately upon demand. Such net proceeds the other terms and conditions hereof, the Net Proceeds shall be disbursed in accordance with Agent’s standard construction lending practices, terms and conditions if the following conditions are satisfied (each a “Release Condition” and collectively, the “Release Conditions”):
(A) no Default or Event of Default shall have occurred and be continuing;
(B) Borrower shall have delivered to Agent within ninety (90) days after the occurrence of the Casualty, a notice of Borrower’s desire to undertake the Restoration;
(C) Borrower shall have demonstrated to the reasonable satisfaction of Agent that the Restoration can be substantially completed at least six (6) months prior to the then-current Maturity Date, or such earlier time as may be applied required by Mortgageeapplicable Legal Requirements;
(D) Borrower shall have demonstrated to the reasonable satisfaction of Agent that sufficient funds are available to Borrower through rent and/or business interruption insurance maintained pursuant to Section 5.11 hereof, upon cash, and/or a letter of credit or in reduction other similar cash-equivalent security reasonably satisfactory to Agent as to form, content and issuer, and which shall be for the benefit of Agent, to pay all debt service with respect to the Loan and all operating expenses with respect to the Premises during the period reasonably estimated by Borrower as necessary for the completion of the Indebtedness then most remotely Restoration;
(E) With respect to be paida Casualty the insurance proceeds with respect to which are $5,000,000 or more, without a prepayment feeAgent shall have been provided an Appraisal or any Appraisal Update, or to certifying that upon completion of the cost of rebuilding or repairs and restoration of the improvements on Premises the Mortgaged Property. HoweverLoan-to-Value Ratio shall be as required pursuant to the definition of “Restoration” set forth in Section 1.1 hereof;
(F) to the extent, if Mortgagee in Agent’s reasonable judgment, the Net Proceeds are insufficient to pay the costs of the Restoration, Borrower shall require have provided Agent with a letter of credit, cash deposit or similar equivalent security in the amount of such deficiency in form, content and issuer reasonably satisfactory to Agent;
(G) Agent shall have received architectural plans and specifications for all restoration and repairs and an estimate of the costs and expenses of all such restoration and repairs, all of which shall be in form reasonably acceptable to Agent; and
(H) Prior to any disbursement by Agent, the following information and documentation shall have been obtained by Borrower, at Borrower’s expense, and submitted to Agent, which information and documentation shall be in form and substance reasonably satisfactory to Agent:
(1) A request for disbursement signed by Borrower, accompanied by billing statements, vouchers or invoices, which request for disbursement shall expressly warrant that the improvements on work with respect to which the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and advance is requested has been performed in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt all material respects in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that approved plans and specifications for the restorationrestoration or repair;
(2) Proof that all invoices for labor and materials previously submitted by Borrower and approved and reimbursed by Agent have been paid, except for those the subject of the current request for disbursement;
(3) Lien waivers for all payees under previous requests for disbursements;
(4) With respect to a Casualty the insurance proceeds with respect to which are $5,000,000 or more, a report from Borrower’s architect or, if Agent shall elect, Agent’s consultant, which shall specify the percentage of completion of restoration or repair, replacement shall provide detailed comments on specific work performed since the date of the last such report, and, if required by Agent, an estimate of the cost to complete the restoration and repair after taking into account the work then completed;
(5) At the request of Agent, a title report or rebuilding be submitted to and approved by Mortgagee prior endorsement to the commencement Title Policy showing no Liens of record other than the Permitted Encumbrances;
(6) Copies of the workagreements pursuant to which the restoration or repair shall be done, all of which shall be in form and substance reasonably satisfactory to Agent, and which also shall be reasonably satisfactory to Agent as to the party performing the construction obligations thereunder;
(7) An assignment to Agent of all construction and design-professional contracts (which may be pursuant to the Mortgage and the Assignment of Agreements), together with the written consent to such assignments by all parties to such contracts (which may be included in any such contract); and
(8) Such other information and documentation as Agent may reasonably request regarding the Improvements and the restoration or repairs and the cost thereof.
(ii) Notwithstanding Section 5.12(d)(i) hereof, if Agent does not elect to hold the Net Proceeds, Borrower shall not disburse any Net Proceeds other than in accordance with the conditions of this Section 5.12(d) and Sections 5.12(e) and 5.12(f) hereof.
(e) If one or more of the Release Conditions set forth in subsections (A) through (H) of Section 5.12(d)(i) hereof are not satisfied within ninety (90) days after the occurrence of the Casualty, all Net Proceeds shall be applied in accordance with Section 5.14 hereof, provided, that, if each of the Release Conditions shall have been satisfied except the Release Condition set forth in Section 5.12(d)(i)(A) hereof as a result of the occurrence of a Default (as opposed to the occurrence of an Event of Default), Agent shall not so apply the Net Proceeds until such time, if any, as an Event of Default shall have occurred. If an Event of Default occurs, all Net Proceeds shall also be applied in accordance with Section 5.14 hereof.
(f) All reasonable costs and expenses incurred by Agent in connection with making the Net Proceeds available for the Restoration (including reasonable attorneys’ fees and disbursements and reasonable fees and actual out-of-pocket expenses of Agent’s construction consultants and inspectors) shall be paid by Borrower. Any surplus which may remain out Net Proceeds remaining after the Restoration and the payment in full of said all costs incurred in connection with the Restoration, at Agent’s option, either will be distributed by Agent to Borrower or applied as a mandatory prepayment of the Loan.
(g) Business interruption/rent loss insurance proceeds of Borrower shall be deposited into the Lockbox Account and disbursed in accordance with the Cash Management Agreement. Any business interruption/rent loss insurance proceeds remaining after completion of the Restoration shall, at Agent’s election, be distributed to Borrower or applied as a mandatory prepayment of the Loan (without payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyPrepayment Fee).
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice 12.1 Repair of the Premises; Rental Abatement. Tenant shall promptly notify Landlord in writing (a "Damage Notice") of any casualty event, damage or condition to which this Article 12 is or may be applicable (a "Casualty"). Landlord shall, within a reasonable time after the discovery by Landlord of any damage resulting from any Casualty, subject to reasonable delays for insurance adjustment or other matters beyond Landlord's reasonable control, and subject to all other terms of this Article 12, begin to repair the damage to the damage to the Building resulting from such Casualty and proceed with reasonable diligence to restore the Building (the "Restoration") to substantially the same condition as existed immediately before such Casualty, except for modifications required by applicable Laws or destruction covenants, conditions and restrictions, and modifications that are deemed desirable in good faith by Landlord; provided, however, that Landlord shall not be required to repair or replace any of any the Alterations, furniture, equipment, fixtures, and other improvements on the Mortgaged Property or to personal property used which may have been placed by, or at the request of, Tenant or other occupants in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor Building or the lessees under any lease Premises, all of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, which shall be added promptly repaired, restored or replaced by Tenant; provided that Landlord shall have the right to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default elect (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion) to restore the leasehold improvements in the Premises, upon and in reduction of the Indebtedness then most remotely if Landlord so elects to be paid in inverse chronological orderrestore such leasehold improvements, Tenant shall assign to Landlord (or to any party designated by Landlord) all insurance proceeds payable to Tenant under Tenant's insurance required under this Lease with respect to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and leasehold improvements in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time Premises (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion the restoration of the leasehold improvements in the Premises exceeds the amount of insurance proceeds received by Landlord from Tenant's insurance carrier, tile excess cost shall be paid by Tenant to Landlord prior to Landlord's repair of the damage, or at Landlord's election, at any later time following Landlord's discovery of any insufficiency of such work and insurance proceeds). Landlord shall have no liability for any inconvenience or annoyance to Tenant or injury to Tenant's business as a result of any Casualty, or the Restoration, regardless of the diligent cause therefor. If any Casualty causes Material Premises Damage, then Base Rent and timely prosecution thereof Additional Rent payable under Article 4 shall xxxxx if and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion extent Tenant ceases to occupy a material portion of the Premises that was rendered unfit for occupancy as a result of such restorationMaterial Premises Damage, repair, replacement or rebuilding shall exceed ninety percent (90%) for the period of time commencing on the date Tenant actually vacates such material portion of the value Premises and continuing until the Restoration of the work performed from time Material Premises Damage is substantially completed (as determined by Landlord's architect); provided, however, that such abatement shall be limited to time the proceeds of rental interruption insurance proceeds with respect to the Premises and at all times the undisbursed balance of such proceeds remaining in the hands Casualty collected by Landlord. "Material Premises Damage" shall exist if any material portion of the disbursing party, together with funds deposited Premises is rendered unfit for the purpose occupancy or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment non-accessible as a result of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved material damage (by Mortgagee prior Casualty) to the commencement Premises and/or to portions of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at Common Areas that are required for access to the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.Premises [DBL:dbllMaguire Properties - SDTC - YoNaturals Lease/1064.002] -14-
Appears in 1 contract
Samples: Office Lease (Fresh Healthy Vending International, Inc.)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice 1.1 If the Building or the Premises, or any part thereof, is damaged by fire or other casualty before the Commencement Date or during the Lease Term, and this Lease is not terminated pursuant to sections 11.2 or 11.3 hereof, Landlord shall repair such damage and restore the Building and the Premises to substantially the same condition in which the Building and the Premises existed before the occurrence of damage such fire or other casualty (provided that Landlord shall have no obligation to restore any above-Building standard improvements or destruction of any improvements on the Mortgaged Property or to personal property used Alterations in the operation Premises, unless the cost thereof is paid by Tenant in advance of such restoration, or any Alterations made by or for Tenant in the Premises following the Commencement Date) and this Lease shall, subject to the provisions of this Article 11, remain in full force and effect. If such fire or other casualty damages the Premises or common areas of the Mortgaged Property Building necessary for Tenant’s use and in case occupancy of loss covered by policies of insurance, Mortgagee is hereby authorized the Premises and Tenant ceases to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of use any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred Premises as a result thereof, then during the period the Premises are rendered untenantable by Mortgagee such damage Tenant shall be entitled to a reduction in Monthly Rent in the collection proportion that the area of the Premises rendered unusable by such damage bears to the total area of the Premises. Landlord shall not be obligated to repair any damage to, or to make any replacement of, any movable furniture, equipment, trade fixtures or personal property in the Premises or Alterations made by or for Tenant in the Premises following the Commencement Date. Tenant shall, at Tenant’s sole cost and expense, repair and replace all such movable furniture, equipment, trade fixtures, personal property and any Alterations made by or for Tenant in the Premises following the Commencement Date. Such repair and replacement by Tenant shall be done in accordance with Article 8 hereof. Tenant hereby waives California Civil Code sections 1932(2) and 1933(4), or any successor statute, providing for termination of hiring upon destruction of the thing hired.
1.2 If the Building or the Premises, or any part thereof, is damaged by fire or other casualty before the Commencement Date or during the Lease Term and (a) such fire or other casualty occurs during the last twelve (12) months of the Lease Term and the repair and restoration work to be performed by Landlord in accordance with section 11.1 hereof cannot, as reasonably estimated by Landlord, be completed within two (2) months after the occurrence of such fire or other casualty, or (b) the insurance proceedsproceeds received by Landlord in respect of such damage are not adequate to pay the entire cost, together as reasonably estimated by Landlord, of the repair and restoration work to be performed by Landlord in accordance with interest thereon from section 11.1 hereof, or (c) the repair and restoration work to be performed by Landlord in accordance with section 11.1 hereof cannot, as reasonably estimated by Landlord, be completed within six (6) months after the occurrence of such fire or other casualty, then, in any such event, Landlord shall have the right, by giving written notice to Tenant within sixty (60) days after the occurrence of such fire or other casualty, to terminate this Lease as of the date specified in such notice, which date shall be not less than thirty (30) days nor more than sixty (60) days after the date such notice is given. 1131701.06/SF372493-00050/1-31-20/pwn/pwn
1.3 A total destruction of the Building shall automatically terminate this Lease effective as of the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or total destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.
Appears in 1 contract
Samples: Lease (Dexcom Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage (a) If, prior to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation full payment of the Mortgaged Property Series 2022C Bonds and any Parity Bonds or prior to provision for payment thereof having been made in case accordance with the provisions of loss covered by policies of insurancethe Resolution, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor any building or the lessees under any lease of other facility constituting any portion of the Mortgaged Property (“Lease” Project is destroyed or “Leases”). Any expenses incurred damaged by Mortgagee in fire or other casualty to such extent as to require the collection repair, rebuilding, or replacement thereof, the Lessee will continue to make the payments of Basic Rent and Additional Rent required hereby, and all proceeds of insurance proceeds, together with interest thereon resulting from the date of claim for any such expense at loss, after deducting therefrom the highest default rate set forth legal and other expenses, if any, incurred in the Notesobtaining such proceeds, shall be added paid to and become held by the Lessee in a part of separate trust account, whereupon the Indebtedness and shall be reimbursed by Mortgagor Lessee will proceed promptly to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgageerepair, upon rebuild or in reduction of restore the Indebtedness then most remotely property damaged or destroyed to be paid, without a prepayment fee, or substantially the same condition as existed prior to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to event causing such damage or destruction, with such changes, alterations, and modifications, including the substitution and addition of other property, as may be desired by the Lessee unless the Lessee determines that such replacement or repair is not in the best interest of the Lessee. If such property is to be repaired, rebuilt, or restored, the Lessee will apply so much as may be necessary of such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification to payment of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, costs of such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the replacement or repair, restorationeither on completion thereof or, at the Lessee’s option, as the work progresses. In the event such net proceeds are not sufficient to pay in full the cost of such rebuilding, replacement or rebuilding repair, the Lessee will pay that portion of improvements on the Mortgaged Property costs thereof in excess of the amount of such net proceeds. The Lessee will not, by reason of the payment of such excess costs, be entitled to a condition any reimbursement or to any abatement or diminution of at least equal value as existed prior to such damage or destruction. Otherwise, the rents payable hereunder.
(b) Any balance of such net proceeds may be applied by Mortgageeremaining after payment of all the costs of such repair, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological orderrebuilding or restoration, or to the cost of if it shall be determined that such repair, rebuilding or restoration is not in the best interest of the Mortgaged Property or personal property. HoweverLessee, if Mortgagee shall require then and in that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, event all of such net proceeds of insurance shall be made available therefor under paid into the conditions Sinking Fund and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the Lessee’s option of Mortgageeand to the extent practicable, be used for the payment of Bonds as provided in the Resolution or may be applied either on account against payments of Basic Rent. If all Bonds payable from the Indebtedness Sinking Fund and the interest thereon shall have been paid or if sufficient funds will, under the provisions of this subsection, be placed in the Sinking Fund for the payment and defeasance of all Bonds payable from the Sinking Fund, then most remotely to be paid in inverse chronological orderthe excess, without a prepayment feeif any, or of such proceeds over the amount required for such payment and defeasance shall be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyLessee.
Appears in 1 contract
Samples: Lease Agreement
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage If at any time during the Lease term the Leased Premises shalt be damaged or destroyed in whole or in part by fire or other casualty so as to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of render any portion of the Mortgaged Property Leased Premises wholly unfit for occupancy and if the Leased Premises cannot be repaired by Landlord and Tenant within ninety (“Lease” or “Leases”). Any expenses incurred by Mortgagee in 90) construction days from the collection happening of insurance proceedssaid damage, together with interest thereon then either party may elect within ten (10) business days from the date of the casualty, to terminate this Lease on the tenth (10th) business day after such expense at election. If the highest default rate set forth Lease is not terminated by reason of such casualty, then Landlord shall repair and restore the Building and such portions of the Leased Premises as are insured by Landlord pursuant hereto. Tenant shall be responsible for refurbishing, restoring or repurchasing its personal property located within the Leased Premises. Tenant and Landlord shall act with all reasonable speed and promptness, subject to delays arising from shortage of labor or material, acts of God, war or other conditions beyond Landlord's reasonable control, to repair and restore the Building. In the event that neither party elects to terminate this Lease, Landlord shall be only required to expend for Tenant improvements the proceeds of any policy of insurance on Tenant's leasehold improvements required to be held by Landlord pursuant to this Lease. Landlord shall hold such proceeds in trust for use in the Notesrestoration and replacement of Tenant's leasehold improvements. Rent shall abaxx xxoportionately during the period that Landlord is performing its restoration for any portion of the Leased Premises that is unfit for use by Tenant in the ordinary conduct of its business. Landlord and Tenant agree to cooperate, one with the other, to repair and restore the Building and the Leased Premises with all due haste. To that end, Tenant, and Tenant's contractor shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or given access to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the Leased Premises as soon as possible in order to repair, restoration, replacement restore and/or install or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, reinstall Tenant's trade fixtures and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partypersonalty.
Appears in 1 contract
Samples: Research Agreement (Biodelivery Sciences International Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice (a) Seller shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to keep all insurance policies currently maintained with respect to the Terminal Operations, or suitable replacements or renewals, in full force and effect through the close of business on the Closing Date. In the event of any material damage to or destruction of any improvements on Purchased Asset (other than normal wear and tear) after the Mortgaged Property or date hereof and prior to personal property used the Closing (in the operation of the Mortgaged Property and in case of loss covered by policies of insuranceany such case, Mortgagee is hereby authorized a “Casualty Loss”), Seller shall give notice thereof to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of Purchaser. If any portion of such Casualty Loss is covered by insurance policies, all right and claim of Seller and its Subsidiaries to any proceeds of insurance for such Casualty Loss shall be assigned to Purchaser at Closing (or if previously received by Seller or any of its Subsidiaries and not used prior to the Mortgaged Property Closing Date to repair any damage or destruction, paid to Purchaser), and Purchaser shall complete the Purchase as provided in this Agreement without any reduction in the Initial Purchase Price with respect to the portion of such Casualty Loss that is covered by insurance. If any portion of such Casualty Loss is not covered by insurance policies, at Seller’s election, (i) Purchaser shall complete the Purchase as provided in this Agreement and the Initial Purchase Price shall be reduced by an amount equal to Seller’s good faith estimate of the cost to repair or restore the Purchased Assets affected by such uninsured Casualty Loss (the “Lease” Affected Assets”) to their condition immediately prior to the occurrence of such uninsured Casualty Loss (to the extent not so repaired or restored by Seller or any of its Subsidiaries) or (ii) the Affected Assets shall be excluded from the Purchased Assets and the Initial Purchase Price shall be reduced by an amount equal to Purchaser’s good-faith estimate of the fair market value of the Affected Assets immediately prior to the Casualty Loss (the “LeasesReduction Amount”).
(b) (i) If, within thirty (30) days following Seller’s exclusion of Affected Assets at the Closing pursuant to clause (ii) of Section 6.12(a), Seller delivers to Purchaser a notice objecting to the Reduction Amount, Seller and Purchaser shall together select an appraiser within fifteen (15) days after the expiration of said thirty (30) day period to determine the fair market value of the Affected Assets immediately prior to the Casualty Loss. If the parties are unable to agree upon an appraiser by the expiration of such fifteen (15) day period, each of Seller, on the one hand, and Purchaser, on the other hand, shall select its own appraiser within seven (7) days after such fifteen (15) day period and, if either Seller or Purchaser shall fail to appoint its appraiser within such period, the appraiser selected by the other party shall alone serve as appraiser. Any expenses incurred by Mortgagee appraiser acting as such hereunder shall be a nationally recognized U.S. investment bank, firm of valuation consultants or other reputable and experienced appraisers, in each case with expertise in the collection appraisal of insurance proceedsterminals and associated assets. The appraisers shall determine in writing the fair market value of the Affected Assets immediately prior to the Casualty Loss using standard valuation techniques as such appraisers deem appropriate, but assuming that the Affected Assets were used in connection with third-party, commercial terminal operations. Each of Seller and Purchaser shall be entitled to provide written materials to the appraisers in connection with such appraisal, and each of Seller and Purchaser shall provide all materials reasonably requested by the other party in connection therewith. Each of Seller and Purchaser shall provide each appraiser with the same written materials, if any, it provides the other appraiser in assisting in the determination of the fair market value of the Affected Assets immediately prior to the Casualty Loss. Each party shall use its commercially reasonable efforts to cause any appraiser engaged by such party in accordance with this Section 6.12 to return its appraisal of the fair market value of the Affected Assets immediately prior to the Casualty Loss within thirty (30) days after the date of such appraiser’s engagement by such party.
(ii) If the higher of the appraisals exceeds the lower of the appraisals by ten percent (10%) or less, then the fair market value of the Affected Assets immediately prior to the Casualty Loss shall be equal to the average of the two appraisals. If the higher of the appraisals exceeds the lower of the appraisals by more than ten percent (10%), then the two appraisers shall select a third appraiser who shall meet the aforementioned criteria for appraisers. The third appraiser shall appraise the fair market value of the Affected Assets immediately prior to the Casualty Loss within thirty (30) days after the date of its engagement. If the amount of the third appraisal is between the other two appraisals or is equal to either of the other two appraisals, then the fair market value shall be deemed equal to the third appraisal. If the third appraisal is higher than the other two appraisals, then the fair market value shall be deemed equal to the higher of the other two appraisals. If the third appraisal is lower than the other two appraisals, then the fair arket value shall be deemed equal to the lower of the other two appraisals. The fair market value of the Affected Assets as determined pursuant to the appraisal process set forth in this Section 6.12(b) (the “Appraised Value”) shall be final and shall be binding on each of Seller and Purchaser. Each party shall bear the costs and expenses of its appointed appraiser, and the costs and expenses of the third appraiser, if any, shall be borne 50% by Seller and 50% by Purchaser.
(iii) Within five (5) Business Days following the determination of the Appraised Value, (i) if the Appraised Value is more than the Reduction Amount, Seller shall pay to Purchaser an amount equal to the Appraised Value minus the Reduction Amount, or (ii) if the Appraised Value is less than the Reduction Amount, Purchaser shall pay to Seller an amount equal to the Reduction Amount minus the Appraised Value, in either case, together with interest thereon on such amount from the date Closing Date calculated using the prime rate of such expense at the highest default rate set forth interest as published in the Notes, shall be added to and become a part The Wall Street Journal as of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as date prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety plus two percent (902%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Buckeye Partners, L.P.)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to or destruction of any improvements on (a) If the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Security Property shall be damaged or destroyed (in whole or in part) at any time during the Loan Term:
(i) The Board shall have no obligation to a replace, repair, rebuild or restore the Security Property;
(ii) There shall be no abatement or reduction in the amounts payable by the Borrower under this Agreement (whether or not the Security Property is replaced, repaired, rebuilt or restored); and
(iii) Except as otherwise provided in Section 7.1(b), the Borrower shall promptly replace, repair, rebuild or restore the Security Property to substantially the same condition of at least equal and value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value an operating entity as existed prior to such damage or destruction. Otherwise, with such net proceeds changes, alterations and modifications as may be applied desired by Mortgageethe Borrower, in its sole discretionprovided that such changes, upon and in reduction alterations or modifications do not (A) so change the nature of the Indebtedness then most remotely to be paid Project that it does not qualify under the Act for the financial assistance provided by the Program or (B) adversely affect the tax-exempt status of the interest payable on the Bonds. Except as otherwise provided in inverse chronological orderSection 7.1(b), or the Borrower shall apply to the cost of replacement, repair, rebuilding or restoration of the Mortgaged Property Project so much as may be necessary of any Net Proceeds of insurance resulting from claims for such losses. If the claim for loss resulting from such damage or personal property. Howeverdestruction exceeds $50,000, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds all Net Proceeds of insurance shall be made available therefor under paid to and held by the conditions and Trustee in the manner set forth Reconstruction Account. All Net Proceeds so deposited shall be applied as provided below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of If the improvements on Borrower determines that the Mortgaged Security Property shall be disbursed repaired, replaced or restored in whole, the Board hereby authorizes and directs the Trustee, subject to the conditions set forth herein, to make payments from time the Reconstruction Account for such purposes or to time reimburse the Borrower for costs paid by it in connection therewith by disbursements in accordance with commercially reasonable procedures for payment of costs upon incurrence thereof. In addition, the final disbursement of moneys in such Reconstruction Account shall be withheld until a final certificate of completion is delivered to the Board and the Trustee. The Trustee may not make any payments from the Reconstruction Account to repair, restore, replace, modify or improve the Security Property pursuant to this Section 7.1 unless the Borrower has (provided no default exists in i) first, obtained a fixed price construction contract or purchase order for the repair, restoration, replacement, modification or in this Agreement or in any improvement of the Instruments or any Lease at Security Property, specifying a Completion Date therefore, and (ii) caused the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior deposit to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing partyReconstruction Account an amount which, together with funds deposited for the purpose or irrevocably committed Net Proceeds and all interest to be earned thereon through the Completion Date established in clause (i) above, will be sufficient to pay all costs of repair, restoration, modification and improvement of the Security Property. Thereafter the Trustee, upon receipt of a certificate of an Authorized Representative of the Borrower that payments are required for such purpose, shall apply so much as may be sufficient in necessary of the reasonable judgment Net Proceeds of Mortgagee, such insurance to pay for the cost payment of completion the costs of all such restorationreplacement, repair, replacement rebuilding or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement such moneys to be applied either on completion thereof or rebuilding be submitted to and approved by Mortgagee prior to as the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration maywork progresses, at the option of Mortgageethe Board. In the event the Borrower has elected to rebuild or restore, and amounts in the Reconstruction Account are not sufficient to pay in full the costs of such replacement, repair, rebuilding or restoration, the Trustee shall request the Borrower to pay into the Reconstruction Account an amount which, together with Net Proceeds available for such purposes, shall be applied either on account sufficient to pay all such costs, and, upon receipt of such request, the Borrower shall forthwith pay such amount to the Trustee. In the event that the Borrower fails to pay any such amounts into the Reconstruction Account, then the Single Lot Bonds shall be prepaid in accordance with Section 7.1(b) of this Agreement. All such replacements, repairs, rebuilding or restoration made pursuant to this Section 7.1, whether or not requiring the expenditure of the Indebtedness then most remotely Borrower's contribution, shall automatically become a part of the Security Property as if the same were specifically described herein. Any balance of such Net Proceeds remaining after payment of all the costs of such replacement, repair, rebuilding or restoration shall be deposited in the Special Redemption Account held by the Trustee and used only to be paid prepay the Single Lot Bonds as provided in inverse chronological orderSection 5.11(a) of the General Bond Resolution.
(b) In the event that the Borrower shall fail or elect not to replace, without a prepayment feerepair or restore the Security Property, or if an Event of Default under Section 10.1 hereof shall have occurred and be continuing and the Single Lot Bonds have been accelerated, then at the direction of the Board the Net Proceeds of the insurance shall be transferred from the Reconstruction Account to the Special Redemption Account or otherwise paid to the Trustee for deposit into the Special Redemption Account. To the extent that such Net Proceeds so transferred into the Special Redemption Account are not sufficient to pay the Single Lot Bonds in whole pursuant to Section 2.8 of the Single Lot Resolution, the Borrower shall forthwith pay the sum of such deficiency to the Trustee for deposit into the Special Redemption Account.
(c) The Borrower shall not be obligated to replace, repair, rebuild or restore the Project, and all such Net Proceeds shall be paid to any person or persons otherwise entitled thereto. Application or release of proceeds the Borrower for its purposes, if the Single Lot Bonds and interest thereon have been paid in full and all other amounts due and owing hereunder, under the provisions hereof shall not cure or waive Note and the Security Instruments have been paid in full.
(d) The Borrower may adjust all claims under any default hereunder or invalidate any act done pursuant policies of insurance required by Section 6.4(a) hereof; provided, however, that no such claim with respect to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in an insured event as to which the hands of Mortgagee Board or the disbursing partyTrustee may be or is alleged to be liable may be adjusted without the prior written consent of the Board or the Trustee, as the case may be.
Appears in 1 contract
Samples: Loan Agreement (Sparta Foods Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of (a) If the Building or the Premises shall be partially or totally damaged or destroyed by fire or other casualty (and if this Lease shall not be terminated as in this Article 19 hereinafter provided), (a) Landlord shall diligently repair the damage to and restore and rebuild the Building and the core and shell of the Premises (excluding the Tenant’s Work, Alterations, leasehold improvements, Tenant’s improvements and betterments and the property which is deemed Tenant’s Property pursuant to Section 12.02 hereof) with reasonable dispatch after notice to it of the damage or destruction of any improvements on and the Mortgaged Property or to personal property used in the operation collection of the Mortgaged insurance proceeds attributable to such damage (herein called “Landlord’s Restoration Work”), and (b) Tenant shall diligently repair the damage to and restore and repair the Tenant’s Work, Alterations, leasehold improvements, Tenant’s improvements and betterments and the property which is deemed Tenant’s Property pursuant to Section 12.02 hereof with reasonable dispatch after the substantial completion of Landlord’s repairs and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion restoration of the Mortgaged Property core and shell of the Premises provided for in clause (a) above (herein called “Lease” or “LeasesTenant’s Restoration Work”). Any expenses incurred Such work by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, Tenant shall be added deemed Alterations for the purposes of Article 11 hereof. Provided that this Lease shall not be terminated by Landlord or Tenant, in connection with any Tenant’s Restoration Work costing in excess of $500,000.00 (as reasonably estimated by Landlord) the proceeds of policies providing coverage for leasehold improvements and Tenant’s improvements and betterments (other than for Tenant’s Property) shall, subject to the rights of any Superior Lessor or Superior Mortgagee, be paid to Landlord and become a part segregated by Landlord for the purpose of the Indebtedness casualty in question and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or disbursed therefrom in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence payment of the cost of completion Tenant’s Restoration Work as the performance of such work and of the diligent and timely prosecution thereof and with architect’s progresses, against certificates, waivers of lienin form and substance and certified by a person satisfactory to Landlord, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so showing that the disbursing party can verify that the amounts disbursed from time disbursement to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment be made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed represents not more than ninety percent (90%) of the value cost of the work performed from time to time and at all times materials described in the certificate and that the estimated cost of completion of Tenant’s Restoration Work does not exceed the undisbursed balance of such proceeds remaining in the hands (exclusive of the disbursing partyten percent (10%) retention); provided, together however, no such proceeds need be paid over to Landlord if the Tenant under this Lease is the Named Tenant and such Named Tenant has a net worth (as defined in Article 7 above) or market capitalization at least equal to the Named Tenant as of the Effective Date (and reasonable proof thereof is provided to Landlord). The balance of such proceeds shall be paid to Tenant upon the presentation of a like certificate, evidencing that Tenant’s Restoration Work has been completed and that there are no mechanics’ or other liens outstanding relating thereto (unless the balance of said proceeds shall be used to make final payments to release the same). Notwithstanding anything to the contrary contained herein, if this Lease shall be terminated by Landlord or Tenant pursuant to this Article 19, the proceeds of policies providing coverage for the Tenant’s Work, Alterations, leasehold improvements and Tenant’s improvements and betterments shall be paid to Landlord in an amount not to exceed the unamortized portion of the Work Allowance (determined as of the date of such casualty) (which amortization shall be determined over a period of time commencing on the Rent Commencement Date and ending on the initially-scheduled Expiration Date). Tenant shall be solely responsible for (i) the amount of any deductible under the policy insuring leasehold improvements and Tenant’s improvements and betterments and (ii) the amount, if any, by which the cost of repairing and restoring the leasehold improvements and Tenant’s improvements and betterments exceeds the available insurance proceeds therefor. The amount due in accordance with funds deposited subparagraph (i) above shall be Additional Charges under this Lease and payable by Tenant to Landlord upon demand. The proceeds of Tenant’s insurance policies with respect to Tenant’s Property shall be payable to Tenant.
(b) Notwithstanding anything to the contrary contained in this Article, if in Landlord’s reasonable discretion, it would be appropriate for safety reasons, health reasons or the efficient operation or restoration of the Building for Landlord to perform all or a portion of Tenant’s Restoration Work on behalf of Tenant, then (i) Landlord shall give Tenant a notice specifying the portion of Tenant’s Restoration Work to be performed by Landlord (herein called the “Specified Restoration Work”), (ii) Landlord shall perform such Specified Restoration Work and (iii) Tenant shall pay to Landlord (or Landlord shall retain from the insurance proceeds paid to Landlord in accordance with Section 19.01(a) hereof) the cost of such Specified Restoration Work within thirty (30) days following the giving of Landlord’s written demand therefore (provided that the cost of such Specified Restoration Work shall not be substantially higher than that which would have been incurred by Tenant). Tenant shall promptly permit Landlord access to the Premises for the purpose of performing the Specified Restoration Work and any restoration work to the Building which is not the responsibility of Tenant hereunder. If required by Landlord in connection with the performance of the Specified Restoration Work or irrevocably committed Landlord’s Restoration Work, Tenant shall promptly remove from the Premises all or such items of Tenant’s Property as Landlord may require by written notice (herein called “Tenant’s Property Removal Obligation”). In the event that Tenant fails to comply with Tenant’s Property Removal Obligation within fifteen (15) Business Days after the giving of such written notice by Landlord, Landlord shall have the right to remove and store such Tenant’s Property at Tenant’s sole cost and expense and with no liability to Landlord. Tenant shall be solely responsible for arranging for any visits to the Premises by Tenant’s insurance adjuster that may be desired by Tenant prior to the performance by Landlord or Tenant of Tenant’s Property Removal Obligation or the performance by Landlord of Landlord’s Restoration Work or the Specified Restoration Work and Landlord shall be under no obligation to delay the performance of same, nor shall Landlord have any liability to Tenant, in the event that Tenant fails to do so. If the nature of the casualty and the nature of the restoration results in Landlord performing Landlord’s Restoration Work in conjunction with Tenant performing Tenant’s Restoration Work, each of Landlord and Tenant shall reasonably cooperate with each other in the performance and scheduling of such purposework.
19.02. Subject to the provisions of Section 19.05 hereof, if all or part of the Premises shall be damaged or destroyed or rendered completely or partially untenantable on account of fire or other casualty, the Fixed Rent and the Additional Charges under Article 3 hereof shall be abated in the proportion that the untenantable area of the Premises bears to the total area of the Premises (it being understood and agreed that the entire Premises shall be deemed untenantable if a portion of the Premises is untenantable and Tenant is not able, in Tenant’s reasonable discretion, to utilize the remainder of the Premises for the ordinary conduct of Tenant’s business therein), for the period (as such period shall be extended on a day-for-day basis to the extent Tenant is delayed in performing its restoration work due to Landlord’s negligence or willful misconduct) from the date of the damage or destruction to (i) the date the damage to the core and shell of the Premises (exclusive of leasehold improvements, Tenant’s improvements and betterments and Tenant’s Property) shall be substantially repaired by Landlord (provided, however, that if in Landlord’s reasonable judgment based upon the estimate of Landlord’s independent contractors such repairs would have been substantially completed at an earlier date but for Tenant’s having failed to reasonably cooperate with Landlord in effecting such repair, then the core and shell of the Premises shall be deemed to have been repaired substantially on such earlier date and any reduction or abatement shall cease) or (ii) if the Building and not the Premises is so damaged or destroyed, the date on which the Premises shall be made tenantable; provided, however, should Tenant or any of its subtenants reoccupy a portion of the Premises during the period the repair work is taking place and prior to the date that the Premises are substantially repaired or made tenantable for the conduct of its or their business (which shall not include entry upon and occupancy of the Premises with the prior written consent of Landlord for the purpose of performing restoration and/or repair to Tenant’s Property, improvements and finish work), the Fixed Rent and the Additional Charges allocable to such reoccupied portion, based upon the proportion which the area of the reoccupied portion of the Premises bears to the total area of the Premises, shall be sufficient payable by Tenant from the date of such occupancy.
(a) If the Building shall be totally damaged or destroyed by fire or other casualty, or if the Building shall be so damaged or destroyed by fire or other casualty (whether or not the Premises are damaged or destroyed) that its repair or restoration requires more than one hundred (180) days or the expenditure of more than forty (40%) percent of the full insurable value of the Building immediately prior to the casualty (as estimated in any such case by a reputable contractor, registered architect or licensed professional engineer designated by Landlord), and provided Landlord shall terminate leases covering no less than seventy-five (75%) percent of the office space in the reasonable judgment Building then leased to tenants (including Tenant) in the Building, then in such case Landlord may terminate this Lease by giving Tenant notice to such effect within ninety (90) days after the date of Mortgageethe casualty. For the purpose of this Section only, to pay for “full insurable value” shall mean replacement cost less the cost of completion footings, foundations and other structures below the street and first floors of all the Building.
(b) If the Premises or any part thereof or the means of access thereto or Building systems servicing same shall be damaged by fire or other casualty, and Landlord is required to or elects to repair and restore the Premises pursuant to Section 19.01(a) above, Landlord shall, within sixty (60) days after such restorationdamage or destruction, repairprovide Tenant with a written notice of the estimated date on which the restoration of the Premises shall be substantially completed, replacement as estimated by Landlord’s architect or rebuildingengineer. Mortgagee If such estimated date is more than fifteen (15) months after the date of such damage or destruction, Tenant may require that plans terminate this Lease by notice to Landlord, which notice shall be given within thirty (30) days after the date Landlord provides the notice required by the preceding sentence, and specifications for such termination shall be effective upon the restorationgiving of Tenant’s notice. Failure by Tenant to provide such notice within such thirty (30) day period shall be deemed an election by Tenant not to terminate this Lease. If Tenant elects not to terminate this Lease or is deemed to have so elected, repairand if Landlord has not substantially completed the required repairs and restored the Premises within the period originally estimated by Landlord or within such period thereafter (not to exceed three (3) months) as shall equal the aggregate period Landlord may have been delayed in commencing or completing such repairs by Force Majeure Causes, replacement then Tenant shall have the further right to elect to terminate this Lease upon written notice to Landlord and such election shall be effective upon the expiration of thirty (30) days after the date of such notice, unless Landlord substantially completes such restoration within such thirty (30) day period.
(c) If more than 50% percent of the rentable square footage Premises shall be damaged by fire or rebuilding other casualty during the last twenty-four (24) months of the term of this Lease (as the same may be submitted to and approved by Mortgagee prior extended pursuant to the commencement terms hereof) such that the Landlord’s Restoration Work and the Tenant’s Restoration Work, in the aggregate, are estimated (as estimated by independent architect or engineer each selected by Landlord and Tenant for each party’s respective work) to take longer than one hundred fifty (150) days, then in such case Landlord may terminate this Lease by giving Tenant notice to such effect within ninety (90) days after the date of the workcasualty, or Tenant may terminate this Lease by giving Landlord notice to such effect within thirty (30) days after the date of the casualty or thirty (30) days after receipt of such estimate, whichever is later, and such election shall be effective upon the expiration of five (5) Business Days after the date of such notice. Any surplus Failure by either party to provide such notice within the aforementioned period shall be deemed an election by such party not to terminate this Lease pursuant to this Section 19.03(c).
19.04. Except as expressly provided in Section 19.03(b) or (c) hereof, Tenant shall not be entitled to terminate this Lease and Landlord shall have no liability to Tenant for inconvenience, loss of business or annoyance arising from any repair or restoration of any portion of the Premises or of the Building pursuant to this Article 19. Landlord shall use reasonable efforts to make such repair or restoration promptly and in such manner as not unreasonably to interfere with Tenant’s use and occupancy of the Premises, but Landlord shall not be required to do such repair or restoration work except during Business Hours of Business Days.
19.05. Notwithstanding any of the foregoing provisions of this Article 19, if by reason of a default by Tenant under this Lease beyond the expiration of any applicable cure or grace period, either Landlord or any Superior Lessor or any Superior Mortgagee shall be unable to collect all of the insurance proceeds (including, without limitation, rent insurance proceeds) applicable to damage or destruction of the Premises or the Building by fire or other casualty, then, without prejudice to any other remedies which may remain out of said insurance proceeds after payment of costs of building and restoration maybe available against Tenant, at the option of Mortgagee, there shall be applied either on account no abatement or reduction of the Indebtedness then most remotely to be paid in inverse chronological orderFixed Rent or Additional Charges.
19.06. Landlord will not carry insurance of any kind on Tenant’s Property, without a prepayment feeleasehold improvements and improvements and betterments, and, except as provided by law or be paid to by reason of Landlord’s negligence or willful misconduct or its breach of any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof its obligations hereunder, shall not cure be obligated to repair any damage to or waive replace Tenant’s Property. Tenant agrees to look first to its insurance for recovery of any default hereunder damage to or invalidate any act done pursuant loss of Tenant’s Property. If Tenant shall fail to any notice of default. No interest maintain such insurance, Landlord shall have the right to obtain insurance on Tenant’s Property and the cost thereof shall be allowed Additional Charges under this Lease and payable by Tenant to Landlord on account demand.
19.07. The provisions of this Article 19 shall be deemed an express agreement governing any such proceeds case of damage or destruction of the Premises by fire or other funds held casualty, and Section 227 of the Real Property Law of the State of New York, providing for such a contingency in the hands absence of Mortgagee an express agreement, and any other law of like import, now or the disbursing partyhereafter in force, shall have no application in such case.
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice In the event the Premises shall be damaged due to fire, the elements, unavoidable accident or other casualty, Landlord shall provide Tenant with an estimate of the time period required to repair or restore the Premises and shall then cause the damage to the Premises (not including Tenant's betterments or destruction improvements) to be repaired or restored with due diligence to substantially the same condition as existed immediately prior to such damage, and this Lease shall continue in full force and effect, subject to any abatement rights of any improvements on Tenant provided herein; provided, however, that Landlord shall not be required to expend in such repair more than the Mortgaged Property proceeds of insurance recovered or recoverable with respect to personal property used in such damage (i.e., the operation full replacement cost of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”Premises). Any expenses incurred by Mortgagee in Tenant shall upon written notice from Landlord promptly restore, replace or repair Tenant's betterments and improvements to the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to Premises and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely other property items required to be paid, without a prepayment fee, or insured by Tenant pursuant to Section 4.3 hereof. If the cost of rebuilding restoring the Premises (not including Tenant's betterments or restoration improvements) to their condition prior to damage shall exceed the amount recoverable in any insurance policies carried by Landlord, or if the Premises are damaged by any casualty not insured against, Landlord, in the event Tenant elects (in writing) not to make such repairs, shall have the right to terminate this Lease by giving Tenant written notice of its election to do so within thirty (30) days after the date on which the damage occurs, whereupon this Lease shall terminate as of the improvements date on which the Mortgaged Propertydamage occurred and all rent payable hereunder shall be equitably adjusted as of said date. HoweverIn the event Landlord fails to give such notice, if Mortgagee this Lease shall require that continue, and Landlord shall cause the improvements on the Mortgaged Property Premises (not including Tenant's betterments and improvements) to be repaired or rebuilt, then and restored with due diligence to substantially the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a same condition of at least equal value as existed immediately prior to such damage or destructiondamage, and such net proceeds of insurance Tenant shall promptly restore, replace or repair Tenant's betterments and improvements to the Premises and other property items required to be made available therefor under insured by Tenant pursuant to Section 4.3 hereof. If Tenant is unable to reasonably occupy the conditions and in the manner set forth below. So premises following a casualty, as long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insuredspremises was not caused by the Tenant's gross negligence or willful misconduct, such insurance proceeds, after deducting expenses incurred in collection, the Tenant's obligation to pay rent under this Lease shall be made available under xxxxx during the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements period Tenant is unable to conduct its business on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyPremises.
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Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to (a) If the Building should be totally destroyed by fire, tornado or destruction of any improvements on other casualty, or if the Mortgaged Property Building should be so damaged thereby that rebuilding or to personal property used repairs cannot in Landlord’s reasonable estimation be completed within the operation of Restoration Period, this Lease shall terminate and the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or Rent shall be abated during the lessees under any lease of any unexpired portion of the Mortgaged Property (“this Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from effective upon the date of the occurrence of such expense at damage.
(b) If the highest default rate set forth in the Notes, shall Building should be added to and become a part of the Indebtedness and shall be reimbursed damaged by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied any peril covered by Mortgagee, upon or in reduction of the Indebtedness then most remotely insurance to be paidprovided by Landlord under Section 12.01, without a prepayment fee, or but only to the cost of such extent that rebuilding or restoration of repairs can in Landlord’s estimation be completed within the improvements on the Mortgaged Property. HoweverRestoration Period, if Mortgagee this Lease shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destructionnot terminate, and such net proceeds of insurance Landlord shall be made available therefor under at its sole cost and expense thereupon proceed with reasonable diligence to rebuild and repair the conditions and Building to substantially the condition in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as which it existed prior to such damage damage, except that Landlord shall not be required to rebuild, repair or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction replace any part of the Indebtedness then most remotely partitions, fixtures, additions and other improvements which may have been placed in, on or about the Premises by you except that Landlord may elect not to be paid in inverse chronological order, or to rebuild if such damage occurs during the cost of rebuilding or restoration last year of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding term of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in Lease exclusive of any of the Instruments or any Lease option which is unexercised at the time of each disbursement)such damage. If the Premises are untenantable in whole or in part following such damage, after first deducting the expenses of disbursement including, without limitation, Rent payable hereunder during the period in which they are untenantable shall be reduced to such extent as may be fair and reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses under all of the disbursing partycircumstances. If Landlord should fail to complete the repairs and rebuilding within the Restoration Period, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration you may, at your option, terminate this Lease by delivering written notice of termination to Landlord as your exclusive remedy, whereupon all rights and or obligations hereunder shall cease and terminate. Should construction be delayed because of changes, deletions, or additions in construction requested by you, strikes, lockouts, casualties, acts of God, war, material or labor shortages, governmental regulation or control or other causes beyond the option reasonable control of Landlord, the Restoration Period shall be extended for the time Landlord is so delayed.
(c) Notwithstanding anything herein to the contrary, if a Superior Mortgagee requires that the insurance proceeds be applied to the indebtedness secured by a mortgage encumbering the Building, then Landlord shall have the right to terminate this Lease by delivering written notice of termination to you within fifteen (15) days after such requirement is made by the Superior Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof whereupon all rights and obligations hereunder shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partycease and terminate.
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Damage or Destruction. Mortgagor will give Mortgagee prompt notice (a) If during the term of damage this Lease the Premises are damaged by fire or other casualty, but not to or destruction of any improvements the extent that Lessee is prevented from carrying on the Mortgaged Property or to personal property used business in the operation of Premises, Lessor shall promptly cause the Mortgaged Property Premises and the improvements thereon to be repaired or restored at its sole cost and risk to substantially the condition in case of loss covered by policies of insurance, Mortgagee is hereby authorized which they existed prior to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of such damage. If such damage renders any portion of the Mortgaged Property Premises untenantable, the rent reserved hereunder (“Lease” or “Leases”). Any expenses incurred except for variable rent) shall be reduced during the period of its untenantability proportionately to the amount by Mortgagee in which the collection area so rendered untenantable bears to the entire area of insurance proceedsthe Premises, together with interest thereon and such reduction shall be apportioned from the date of the casualty to the date when the Premises is rendered fully tenantable. Provided, however, that if Lessor under a Materials Handling Service Agreement then in existence between Lessor and Lessee, can meet Lessee's service requirements for the Premises without additional cost to Lessee, despite the damage to the Premises, then no abatement of rent shall occur. Notwithstanding the foregoing, in the event such fire or other casualty damages or destroys any of Lessee's leasehold improvements, alterations, betterments, fixtures or equipment (exclusive of any such leasehold improvements, alterations, betterments, fixtures or equipment provided to Lessee by Lessor at Lessor's expense at the highest default rate set forth in the Notescommencement of this Lease, which shall be added restored by Lessor), Lessee shall cause the same to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuiltrestored at Lessee's sole expense (other than Lessee's personal property or equipment, then which Lessee may elect, in Lessee's sole discretion, to repair or restore).
(b) If during the repairterm of this Lease the Premises are rendered wholly untenantable as a result of fire, restorationthe elements, replacement or rebuilding other casualty, Lessor and Lessee shall cause such damage to be repaired in accordance with the provisions of the improvements on the Mortgaged Property SUBSECTION 15(A). Such restoration shall be to a condition of at least equal value completed as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor promptly as reasonably possible under the conditions circumstances and in the manner set forth belowfixed rent reserved hereunder shall abatx xxxil the Premises are again rendered tenantable. So long as there exists no Event of Default (as defined in Notwithstanding the Loan Agreement), and provided any loss or damage cannotforegoing, in the sole judgment of Mortgagee, result in event that it is reasonably determined by Lessor and Lessee that the termination, cancellation or modification of the Leases Premises cannot be repaired by Lessor within one hundred twenty (if any)120) days, and if Lessor is unable to provide alternative, comparable warehouse space sufficient to meet Lessee's service requirements without additional cost to Lessee, then Lessee shall have the Leases so require and right to terminate this Lease by written notice to Lessor within thirty (30) days after the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion date of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partycasualty.
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Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to or destruction of any improvements (a) If the Improvements on the Mortgaged Property Property, or any part thereof, are damaged or destroyed by fire or any other cause, and Borrower shall desire to personal property used in restore the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor Improvements or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added required by Lender to and become a part restore the Improvements, Borrower shall, subject to the provisions of this Section, immediately proceed with the Indebtedness restoration thereof, and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction diligently complete the work of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be provided that Lender makes available to a condition of at least equal value Borrower as prior restoration progresses any insurance proceeds actually paid to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and Lender in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior respect to such damage or destruction. OtherwiseIf (i) in Lender’s reasonable judgment the insurance proceeds are sufficient to complete the restoration; and (ii) no Default exists under the Loan Documents (“Restoration Conditions”), such net Lender shall advance the insurance proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction to Borrower as restoration progresses. If any one or more of the Indebtedness then most remotely Restoration Conditions does not exist, Lender shall have no obligation to be paid in inverse chronological order, or to authorize further Advances on the cost of rebuilding or restoration of Loan and may call the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt Loan immediately due and payable in accordance with this Agreementthe following paragraph; provided, however, if, in Lender’s reasonable judgment, the insurance proceeds are insufficient to complete the restoration, Borrower may, but is not required to, satisfy such condition by depositing with Lender such money as in Lender’s reasonable judgment is sufficient to complete the restoration in a timely manner and fully pay the costs thereof.
(b) If in Lender’s reasonable judgment the Improvements cannot be restored in a timely manner as described above or, if Borrower does not or cannot deposit such money or additional money as in Lender’s reasonable judgment is required to complete the restoration and fully pay the cost thereof, or if a Default exists under the Loan Documents following the expiration of all applicable cure periods, such net event shall be deemed an Event of Default hereunder, and Lender’s obligations to authorize further Advances on the Loan or to make insurance proceeds available for restoration shall immediately terminate. Lender may in such case apply any insurance proceeds to reduce the outstanding indebtedness of Borrower under the Loan, and may exercise any of the other remedies which are described in Section 9.2 hereof or in the Loan Documents.
(c) In the case of loss, Lender is hereby authorized to participate in any settlement or adjustment of claims under insurance policies, as its interest may appear, and to collect and receipt for any proceeds. In the event Lender elects to apply the proceeds to restoration, in keeping with the Restoration Conditions, such proceeds shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restorationavailable, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (time, under substantially similar terms and conditions as provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyAgreement.
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Damage or Destruction. Mortgagor will give Mortgagee prompt notice SECTION 11.1. DAMAGE OR DESTRUCTION BY FIRE OR CASUALTY. In the event the Premises are damaged by fire, explosion or other casualty, Landlord shall diligently proceed with respect to the proposed restoration promptly after receipt of damage the insurance proceeds. Landlord shall commence the repair, restoration or rebuilding thereof and shall complete such restoration, repair or rebuilding as soon as reasonably possible after the receipt of such proceeds, subject to extension due to delay because of changes, deletions, or destruction additions in construction requested by Tenant, acts of Tenant, strikes, lockouts, casualties, acts of God, war, fuel or energy shortages, material or labor shortages, governmental regulation or control, severe weather conditions or other causes beyond the control of Landlord ("Extension Events"). In the event of any such casualty all insurance proceeds shall be payable to Landlord. In no event shall Landlord be required to repair or replace any alterations or improvements on made by Tenant which are not related to the Mortgaged Property Improvements, Tenant's Equipment or to any other fixtures, furnishing and personal property used of Tenant. Tenant agrees that Tenant shall pay to Landlord within thirty (30) days after the date the Premises are damaged by fire, explosion or other casualty the amount necessary to pay the cost of restoration, repair and rebuilding in the operation excess of the Mortgaged Property insurance proceeds. If the amount of the insurance proceeds are unknown at such time, Tenant shall immediately pay Landlord the amount of the deductible with the balance, less all amounts paid by the insurance carrier to Landlord, to be paid by Tenant to Landlord within ten (10) business days after the amount of the insurance proceeds is determined. Landlord's obligation to repair, restore or rebuild the Premises shall be limited to restoring the Premises to substantially the condition in which the same existed prior to the casualty. Rent and in case all other charges payable by Tenant hereunder shall abatx xxxing the period of loss covered by policies of insurancesuch repair, Mortgagee is hereby authorized restoration or rebuilding to make proof of loss if the extent that the Improvements are not promptly made by Mortgagor or the lessees under any lease tenantable because of any portion damage or destruction, but only to the extent of the Mortgaged Property Rental Value Insurance proceeds actually received by Landlord. In the event the casualty causes fifty percent (“Lease” 50%) or “Leases”). Any expenses incurred by Mortgagee in more of the collection Premises to be untenantable during the last twenty-four (24) months of insurance proceedsthe Term, together with interest thereon from Landlord may terminate this Lease as of the date of such expense at the highest default rate set forth in the Notes, shall be added casualty by providing notice to and become a part Tenant within thirty (30) days after occurrence of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon fire or in reduction of other casualty causing the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannotdamage, in the sole judgment of Mortgageewhich event, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or shall be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof Landlord and in addition Tenant shall not cure or waive any default hereunder or invalidate any act done pursuant pay to any notice of default. No interest shall be allowed on account Landlord the amount of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partydeductible carried by Tenant under its insurance policies.
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Samples: Industrial Building Lease (Specialty Equipment Companies Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to or destruction of any improvements on A. If the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor Leased Premises or the lessees under any lease of Building is substantially and materially damaged by fire or other casualty, so that all or any portion of the Mortgaged Property Leased Premises is untenantable, even if the Leased Premises are not actually damaged, Landlord may, at its option, exercisable within ninety (“90) days after the date of such damage, elect by written notice to Tenant either to repair and restore the same or to terminate this Lease” .
B. If Landlord shall elect under Paragraph A above to repair or “Leases”). Any expenses incurred restore the Leased Premises, or the Building, Landlord shall do so as promptly as reasonably possible, and this Lease shall remain in full force and effect during the making of such repairs, except that if such loss or damage was not caused in whole or in part by Mortgagee in the collection negligent act of insurance proceedsTenant or its Invitees, together with interest thereon Rent shall xxxxx as follows:
(i) If as a result of such damage or destruction the Leased Premises is rendered totally untenantable, Rent shall xxxxx from the date of such expense at damage or destruction until the highest default rate set forth Leased Premises, or any portion thereof accepted by Tenant, is ready for occupancy; or
(ii) If as a result of such damage or destruction the Leased Premises is rendered partially untenantable, and from and after the date Landlord restores a portion, but less than all of the Leased Premises to tenantable condition, and Tenant with Landlord's written consent elects to reoccupy such portion prior to the entire Leased Premises being restored to tenantable condition, Rent shall be reduced in the Notes, shall be added to and become a part proportion that the untenantable square foot area of the Indebtedness and shall be reimbursed by Mortgagor Leased Premises bears to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction the total square foot area of the Indebtedness then most remotely Leased Premises, and such reduction shall continue until the damaged or destroyed portion of the Leased Premises is ready for occupancy. The foregoing provisions to the contrary notwithstanding, Landlord's obligation to repair, replace and restore the Leased Premises shall never exceed the scope of the work required to be paiddone by Landlord at its cost in originally constructing the Leased Premises pursuant to Exhibit B, without a prepayment feeand Landlord shall not be obligated or required to repair, replace or restore any damage or injury, or make any repairs to or replacement or restoration of any tenant finish items or additions or improvements made in or to the cost Leased Premises by Tenant, or by Landlord for or on behalf of rebuilding or restoration Tenant (hereinafter "Tenant Paid Improvements"), which are in excess of the improvements on original tenant finish which Landlord was obligated to provide at its cost pursuant to Section 13 hereof, except to the Mortgaged Property. Howeverextent that the loss or damage of such Tenant Paid Improvements is insured under one or more insurance policies maintained or paid for by Tenant, and which are payable to Landlord, but then only to the extent that Landlord does in fact receive such insurance proceeds and can use such proceeds to repair or replace such damaged or destroyed Tenant Paid Improvements.
C. If Landlord shall elect under Paragraph A above to terminate this Lease, this Lease shall terminate as of the date of such damage or destruction.
D. Anything contained in this Section 19 to the contrary notwithstanding, if Mortgagee shall require the Building of which the Leased Premises is a part, is substantially damaged or destroyed by fire or other casualty and Landlord elects not to repair or rebuild the same, Landlord may, at its option, elect to terminate this Lease, even though the Leased Premises may not be damaged or destroyed by such fire or other casualty; and provided further, that if the improvements on Leased Premises are substantially damaged or destroyed by fire or other casualty at any time when the Mortgaged Property be repaired or rebuiltthen remaining Lease Term is less than twelve (12) months (exclusive of any unexercised renewal options), then Landlord may, at its option, exercised within thirty (30) days after the repair, restoration, replacement or rebuilding date of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and elect to cancel this Lease rather than restore the Leased Premises as herein provided, in which event Landlord may retain all insurance proceeds payable to Landlord because of such net proceeds of insurance loss or damage.
E. Any notice given hereunder shall be made available therefor under the conditions and given in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partySection 40 hereof.
Appears in 1 contract
Samples: Lease Agreement (Brooke Corp)
Damage or Destruction. Mortgagor will give Mortgagee prompt 30.1. Except as otherwise expressly provided herein, if the Building or the Premises shall be partially or totally damaged or destroyed by fire or other casualty (and if this Lease shall not be terminated as in this Article 30 hereinafter provided), Landlord shall repair the damage. to and re: tore and rebuild the Building and the Premises, including the Tenant Initial Work and any Tenant Changes (except for Tenant's Property and except for any fit-out work done for any other tenant) promptly and with reasonable diligence, after notice of damage to it or destruction of any improvements on the Mortgaged Property or to personal property used in the operation actual knowledge by it of the Mortgaged Property and in case of loss covered by policies of insurancedamage: or destruction, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as substantially equivalent to the extent practicable (with respect to character, quality, utility and appearance) to that which existed immediately prior to such damage damage. To the extent insurance proceeds are not sufficient to restore, repair or destruction, and such net proceeds of insurance shall be made available therefor under replace the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require Special Initial Work and the insurers do not deny liability as Special Tenant Changes by reason of Tenant's failure to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, notify Landlord or to properly estimate the cost Insurable Value with respect to any Special Tenant Change or Special Initial Work or by reason of rebuilding or restoration of Tenant's request that Landlord no longer insure the Mortgaged Property or personal property. HoweverSpecial Initial Work and the Special Tenant Changes, if Mortgagee Landlord shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion notify Tenant of such work insufficiency and of the diligent Landlord shall have no obligation to restore, repair or replace such Special Initial Work and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee Special Tenant Changes unless prior to the commencement of such restoration, repair or replacement, Tenant shall pay to Landlord as Additional Rent the workadditional amount required in Landlord's reasonable judgment to perform same. Any surplus Tenant shall be responsible for any portion of the deductible amounts under insurance policies covering such damage or destruction allocable, in Landlord's reasonable judgment, to the Special Tenant Changes and the Special Initial Work. If and to the extent Landlord's estimate of the amount of such shortfall is greater than the actual amount by which may remain out of said the insurance proceeds after payment of costs of building and restoration maywere insufficient, at the option of Mortgagee, be applied either on account Landlord shall reimburse Tenant for any excess monies so funded by Tenant.
30.2. Tenant shall give Landlord immediate notice of the Indebtedness then most remotely occurrence of any fire or other casualty affecting all or any part of the Premises. Subject to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed Section 30.6, if on account of any such proceeds fire or other funds held casualty all or part of the Premises shall be untenantable or inaccessible by reason of any damage or destruction required by this Lease to be repaired or restored by Landlord, the Fixed Rent and the Additional Rent under Article 3 shall be abated in the hands proportion that the untenantable or inaccessible area of Mortgagee the Premises bears to the total area of the Premises, for the period from the date of the fire or other casualty to the disbursing party.later of (a) the date the damage or destruction so required to be repaired or restored by Landlord has been
Appears in 1 contract
Samples: Lease Agreement (Wellchoice Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice (a) If during the term of damage this Lease the Premises are damaged by fire or other casualty, but not to or destruction of any improvements the extent that Lessee is prevented from carrying on the Mortgaged Property or to personal property used business in the operation of Premises, Lessor shall promptly cause the Mortgaged Property Premises and the improvements thereon to be repaired or restored at its sole cost and risk to substantially the condition in case of loss covered by policies of insurance, Mortgagee is hereby authorized which they existed prior to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of such damage. If such damage renders any portion of the Mortgaged Property Premises untenantable, the rent reserved hereunder (“Lease” or “Leases”). Any expenses incurred except for variable rent) shall be reduced during the period of its untenantability proportionately to the amount by Mortgagee in which the collection area so rendered untenantable bears to the entire area of insurance proceedsthe Premises, together with interest thereon and such reduction shall be apportioned from the date of the casualty to the date when the Premises is rendered fully tenantable. Provided, however, that if Lessor under a Materials Handling Service Agreement then in existence between Lessor and Lessee, can meet Lessee's service requirements for the Premises without additional cost to Lessee, despite the damage to the Premises; then no abatement of rent shall occur. Notwithstanding the foregoing, in the event such fire or other casualty damages or destroys any of Lessee's leasehold improvements, alterations, betterments, fixtures or equipment (exclusive of any such leasehold improvements, alterations, betterments, fixtures or equipment provided to Lessee by Lessor at Lessor's expense at the highest default rate set forth in the Notescommencement of this Lease, which shall be added restored by Lessor), Lessee shall cause the same to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuiltrestored at Lessee's sole expense (other than Lessee's personal property or equipment, then which Lessee may elect, in Lessee's sole discretion, to repair or restore).
(b) If during the repairterm of this Lease the Premises are rendered wholly untenantable as a result of fire, restorationthe elements, replacement or rebuilding other casualty, Lessor and Lessee shall cause such damage to be repaired in accordance with the provisions of the improvements on the Mortgaged Property subsection 15(a). Such restoration shall be to a condition of at least equal value completed as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor promptly as reasonably possible under the conditions circumstances and in the manner set forth belowfixed rent reserved hereunder shall abatx xxxil the Premises are again rendered tenantable. So long as there exists no Event of Default (as defined in Notwithstanding the Loan Agreement), and provided any loss or damage cannotforegoing, in the sole judgment of Mortgagee, result in event that it is reasonably determined by Lessor and Lessee that the termination, cancellation or modification of the Leases Premises cannot be repaired by Lessor within one hundred twenty (if any)120) days, and if Lessor is unable to provide alternative, comparable warehouse space sufficient to meet Lessee's service requirements without additional cost to Lessee, then Lessee shall have the Leases so require and right to terminate this Lease by written notice to Lessor within thirty (30) days after the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion date of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partycasualty.
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice In the event of any damage to or destruction of to the Property by fire or other cause during the term hereof, the following provisions shall apply:
a. If the Building is damaged by fire or any improvements on the Mortgaged Property or other cause to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to extent that the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement as reasonably estimated by Landlord, will equal or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety thirty percent (9030%) of the replacement value of the work performed from time Building (exclusive of foundations) just prior to time and at all times the undisbursed balance of such proceeds remaining in the hands occurrence of the disbursing partydamage, together with funds deposited then Landlord may, no later than the sixtieth (60th) day following the damage, give Tenant written notice of Landlord’s election to terminate this Lease.
b. If the cost of restoration as estimated by Landlord will equal or exceed fifty percent (50%) of said replacement value of the Building and if the Premises are not suitable as a result of said damage for the purpose or irrevocably committed purposes for such purposewhich they are demised hereunder, shall be sufficient in the reasonable judgment opinion of MortgageeTenant, then Tenant may, no later than the sixtieth (60th) day following the damage, give Landlord a written notice of election to pay for terminate this Lease.
c. If the cost of completion restoration as estimated by Landlord shall amount to less than thirty percent (30%) of said replacement value of the Building, or if, despite the cost, Landlord does not elect to terminate this Lease, and Tenant does not exercise its termination option, Landlord shall restore the Building and the Premises with reasonable promptness, subject to delays beyond Landlord’s control and delays in the making of insurance adjustments by Landlord; and Tenant shall have no right to terminate this Lease except as herein provided. Landlord shall not be responsible for restoring or repairing leasehold improvements of Tenant.
d. In the event of either of the elections to terminate, this Lease shall be deemed to terminate on the date of the casualty and all such restoration, repair, replacement or rebuildingrentals shall be paid up to that date. Mortgagee may require that plans and specifications Tenant shall have no claim against Landlord for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior value of any unexpired term of this Lease.
e. In any case where damage to the commencement Building shall materially affect the Premises so as to render them unsuitable in whole or in part for the purposes for which they are demised hereunder, then a portion of the workrent based upon the amount of the extent to which the Premises are rendered unsuitable shall be abated until repaired or restored. Any surplus which may remain out Notwithstanding anything contained in this Article 14 to the contrary, Landlord shall only be obligated to restore the Premises to the extent of said the insurance proceeds actually received, but if the insurance proceeds actually received do not permit Landlord to restore the Premises, Landlord shall so notify Tenant and either Landlord or Tenant may terminate this Lease by written notice given within sixty (60) days after payment Landlord’s notice. If Landlord restores the Premises or the Project in accordance with the provisions of costs this Section, then Tenant shall not have any right to terminate this Lease because of building and restoration maysuch damage pursuant to: (i) any common law rights, at the option of Mortgagee, (ii) Minnesota Statutes § 504.05 as now in effect or as it may be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment feehereafter amended or supplemented, or be paid to (iii) any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partycomparable right established by a similar statute.
Appears in 1 contract
Samples: Commercial Lease (Ciprico Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice 4.15.1 In the event of any damage to or destruction of the Premises for which the cost of repair might reasonably be expected to exceed $500,000, Mortgagor shall, promptly after obtaining knowledge of the occurrence thereof, give notice thereof to Mortgagee and shall, regardless of the dollar amount of such damage, proceed with reasonable diligence, at Mortgagor's sole cost and expense, to repair and restore or cause to be repaired or restored the Premises or the portion thereof so damaged as nearly as practically possible to the condition the same were in immediately prior to such damage. If any improvements Personal Property is damaged or lost as a result of such fire or other casualty, Mortgagor shall likewise, at its sole cost and expense, whether or not any insurance proceeds are available or adequate for such purpose, replace or cause to be replaced the Personal Property so damaged or lost. In the event that Mortgagor fails to advance any funds required for the completion of any such repairs or restoration, Mortgagee may, but shall not be obligated to, advance the required funds or any portion thereof, and Mortgagor shall, on demand, reimburse Mortgagee for all sums advanced and actual expenses incurred by Mortgagee in connection therewith, together with interest thereon at the Mortgaged Property or to personal property used Default Rate (as defined in the operation Note) from the date each such advance is made to the date of receipt by Mortgagee of reimbursement from Mortgagor, which amounts and interest shall become part of the Secured Obligations and be secured hereby. All repairs and restoration required to be made by Mortgagor hereunder shall be performed in material compliance with all Laws and Orders and shall be without any liability or actual expense of any kind to Mortgagee. Notwithstanding the foregoing, Mortgagor should not be obligated to repair, restore or replace the Premises and/or Personal Property in the event that (i) Mortgagee requires (pursuant to clause (A) of Section 4.15.2(ii)) the application of insurance proceeds to the payment of Secured Obligations at a time when no Event of Default has occurred and is continuing or (ii) Mortgagor elects not to restore pursuant to Section 4.15.2(iii).
4.15.2 If by reason of any damage or destruction, any insurance proceeds are paid under any insurance policy maintained pursuant to subsection 4.14.1 hereof or otherwise (other than business interruption insurance proceeds or, as the case may be, rental loss insurance proceeds, which shall be paid as provided in clause (iii) of subsection 4.14.1), such proceeds shall be paid as follows:
(i) If the aggregate insurance proceeds received by reason of any single instance of damage or destruction shall not exceed $500,000, such insurance proceeds shall be paid over to Mortgagor, and Mortgagor shall hold the same as a trust fund, to be used first for the payment of the entire cost of repairing and restoring the Premises and/or Personal Property and the balance thereof shall be paid to the Mortgagor; provided, however, that, if any Event of Default shall exist hereunder at the time all such insurance proceeds are so to be paid over to Mortgagor, or if Mortgagee shall have accelerated the Secured Obligations, all such insurance proceeds (in whatever amount) shall be paid over to Mortgagee and not to Mortgagor for application pursuant to clause (B) below.
(ii) If the aggregate insurance proceeds received by reason of any single instance of damage or destruction shall exceed $500,000, such insurance proceeds shall be paid over to Mortgagee and held in an interest-bearing account. The Mortgagee shall apply such insurance proceeds to the repair and restoration of the Mortgaged Property by disbursing the same to Mortgagor on a periodic basis and with such retainage (not to exceed 10%) as Mortgagee reasonably shall deem appropriate, but no more frequently than monthly, as the repair and restoration work progresses, upon receipt by Mortgagee of such guaranties of completion (from Mortgagor and/or other third parties acceptable to Mortgagee), surety bonds, requisitions, architect's certificates and title updates as Mortgagee shall in its good faith discretion require (including without limitation requiring Mortgagor, inter alia, to provide to Mortgagee for its approval appropriate plans and specifications and budgets, and to show that there are at all times sufficient funds (in addition to the available insurance proceeds, as the case may be) available for the completion of loss covered the repair and restoration in question and to pay all amounts due under this Second Mortgage and the Note during such repair and restoration). All amounts held by policies Mortgagee as retainage shall be paid to Mortgagor upon substantial completion of insurancethe repair and restoration work. If any excess proceeds shall remain after the repair and restoration work has been completed and paid for in full out of such insurance proceeds, such excess proceeds shall be paid to Mortgagor if the Premises have been restored to their condition prior to such change or destruction, but otherwise such excess proceeds shall be retained by Mortgagee and applied to the partial prepayment of the Note, at par. Interest earned on insurance proceeds while held by Mortgagee shall be added to the amount of such insurance proceeds. If while any such insurance proceeds are held by Mortgagee an Event of Default shall have occurred and be continuing or Mortgagee shall have accelerated the Secured Obligations, Mortgagee is hereby authorized shall have no duty to make proof advances to Mortgagor as provided for in this clause (ii).
4.15.3 No destruction of loss if not promptly made or damage to the Mortgaged Property, or any part thereof, by fire or other casualty whatsoever, whether such damage or destruction be partial or total or otherwise, shall relieve Mortgagor from its liability to pay in full as and when due the Secured Obligations, or from timely, fully and faithfully performing all its other obligations hereunder and under the lessees under any lease Loan Documents. No application of insurance proceeds to the reduction of the Secured Obligations shall have the effect of releasing the lien of this Second Mortgage from all or any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee until and unless all of the Secured Obligations have been paid in full.
4.15.4 For so long as the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, Tenant Lease shall be added in effect and not in default, if and to and become a part the extent that the provisions of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by MortgageeTenant Lease are inconsistent with the provisions of this Section 4.15, upon or in reduction such provisions of the Indebtedness then most remotely to be paidTenant Lease shall govern, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, including without limitation, reasonable attorneys’ feesthat if the tenant under the Tenant Lease is required to restore the Premises under the Tenant Lease, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding Mortgagee shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such make insurance proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed available for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.
Appears in 1 contract
Samples: Leasehold Mortgage and Security Agreement (Sepracor Inc /De/)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice Tenant shall take good care of the Premises and shall return the same at the expiration or earlier termination of such lease agreement in as good order as received ordinary wear and depreciation excepted, unless the Premises should be destroyed by lightening or other natural causes, or fire proven not to be caused by the negligence or fault of Tenant or Tenant's agents, servants, employees or licensees. If any destruction proven to be without fault of Tenant occurs during the term of such lease agreement, the following shall apply:
(1) If the Premises are partially damaged by fire or other casualty without fault of Tenant, but not rendered wholly untenantable, as determined solely by NFTA, the same shall be repaired with due diligence by NFTA at NFTA's sole cost and expense, and Tenant's rent shall be abated in proportion to the untenantable portion for the period from the occurrence of the damage to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation completion of the Mortgaged Property and in case of loss covered repairs.
(2) If the Premises are completely destroyed by policies of insurancefire or other casualty, Mortgagee is hereby authorized to make proof of loss if not promptly made or so damaged that they shall remain untenantable for more than ninety (90) days, as determined solely by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceedsNFTA, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, NFTA shall be added under no obligation to repair or reconstruct the same and become a part of the Indebtedness and rent payable shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or proportionately paid to the cost time of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. OtherwiseNFTA shall notify Tenant within thirty (30) days of the occurrence of such casualty whether repair or reconstruction of the Premises shall be accomplished. If NFTA elects to repair or reconstruct, it shall commence and prosecute such repair or reconstruction with due diligence. Should NFTA elect not to repair or reconstruct, such net proceeds may be applied by Mortgageelease agreement shall terminate upon the date of such notification; provided however, in such eventuality NFTA agrees to use its sole discretion, upon and in reduction of the Indebtedness then most remotely best efforts to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal provide substitute space for Tenant at a suitable NFTA property. HoweverIn the event substitute space is provided and accepted by Tenant, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the all terms and conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding lease agreement shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled apply thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.
Appears in 1 contract
Samples: Lease Agreement (NanoDynamics, Inc.)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to or destruction of any If the improvements located on the Mortgaged Property Leased Premises are totally or to personal property used in the operation of the Mortgaged Property and in case of loss covered partially damaged or destroyed, by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor fire or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuiltother casualty, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to promptly after such damage or destruction, and such net proceeds of insurance Tenant shall be made available therefor under repair, rebuild or restore all damaged improvements on or about the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases Leased Premises so require and the insurers do not deny liability as to make the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of Leased Premises at least equal in value as existed to the Leased Premises existing immediately prior to such damage or destruction. OtherwiseAll such repair, rebuilding or restoration shall be at Tenant’s expense; provided, however that, to the extent necessary to effect such repair, rebuilding or restoration, Landlord will make available to Tenant the net proceeds of any fire or other casualty insurance paid to Landlord after deduction of any costs incurred in connection with the collection thereof, including reasonable attorneys’ fees. Payment to Tenant of such net proceeds may shall be applied by Mortgageemade in accordance with reasonable procedures customarily required in connection with construction loans. Tenant shall deliver to Landlord for Landlord’s prior written approval the plans and specifications, as well as a schedule setting forth the estimated monthly draws for such work. If Landlord does not respond to Tenant in writing of its sole discretion, upon and in reduction disapproval of the Indebtedness then most remotely to plans and specifications within thirty (30) days after the receipt by Landlord of a written request from Tenant, Txxxxx’s request shall be paid in inverse chronological orderdeemed approved by Landlord. Upon Lxxxxxxx’s approval thereof, or to the cost of Tenant will begin such repairs, rebuilding or restoration of and will prosecute the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt same to completion with diligence and in accordance with the terms and conditions contained in Section 11 of this AgreementLease. Landlord and its architects and engineers shall have the right, such net proceeds of insurance shall be made available therefor under at Tenant’s expense, to inspect the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed Leased Premises from time to time (provided during such repair, rebuilding and restoration. In no default exists event, however, shall Landlord have any liability whatsoever for any defects in the design or in this Agreement construction, or in any the compliance of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for with Laws. In no event shall any damage or destruction allow Tenant to axxxx the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, Base Rent or be paid to any person Additional Rent or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyterminate this Lease.
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to If the Project is damaged by fire or destruction other insured casualty and the insurance proceeds have been made available therefor by the holder or holders of any improvements on mortgages or deeds of trust Initials: ------- ------- covering the Mortgaged Property Premises or the Project, the damage shall be repaired by Landlord to personal property used the extent such insurance proceeds are available therefor and provided such repairs can, in Landlord's reasonable opinion, be completed within two hundred ten (210) days after the necessity for repairs as a result of such damage becomes known to Landlord without the payment of overtime or other premiums, and until such repairs are completed rent shall be abated in proportion to the part of the Premises which is reasonably unusable by Tenant in the operation conduct of the Mortgaged Property and in case its business (but there shall be no abatement of loss covered rent by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease reason of any portion of the Mortgaged Property Premises being unusable for a period equal to one (“Lease” 1) day or “Leases”less). Any expenses incurred by Mortgagee As soon as possible following the damage or destruction, Landlord shall provide Tenant written notice of the amount of time Landlord, in its reasonable opinion, estimates it will take to complete the collection repairs. If the damage is due to the fault or neglect of Tenant, its employees, agents, contractors, guests, invitees and the like, there shall be no abatement of rent, unless and to the extent Landlord receives rental income insurance proceeds. Upon the occurrence of any damage to the Premises, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, Tenant shall be added assign to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, Landlord (or to any party designated by Landlord) all insurance proceeds payable to Tenant under Section 14(a)(ii)(A) above; provided, however, that if the cost of rebuilding repair of improvements within the Premises by Landlord exceeds the amount of insurance proceeds received by Landlord from Tenant's insurance carrier, as so assigned by Tenant, such excess costs shall be paid by Tenant to Landlord prior to Landlord's repair of such damage. If the cost of repair of improvements within the Premises by Landlord exceeds the amount of insurance proceeds received by Landlord from Landlord's insurance carrier, such excess costs shall be paid by Tenant to Landlord prior to Landlord's repair of such damage. If the damage or restoration casualty is not due to the fault or neglect of the improvements on the Mortgaged Property. HoweverTenant, if Mortgagee shall require that the improvements on the Mortgaged Property its employees, agents or visitors, guests, invitees or licensees, and cannot be repaired or rebuilt, then so that Tenant may reasonably occupy the repair, restoration, replacement or rebuilding Premises within two hundred ten (210) days of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, Tenant may terminate this Lease by providing written notice to Landlord within fifteen (15) days of receiving Landlord's estimate as to the time required to repair the Premises. If Tenant does not exercise the foregoing termination right and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage if repairs cannot, in Landlord's reasonable opinion, be completed within two hundred ten (210) days after the sole judgment necessity for repairs as a result of Mortgageesuch damage becomes known to Landlord without the payment of overtime or other premiums, result Landlord may, at its option, either (i) make them in the termination, cancellation or modification of the Leases (if any), a reasonable time and if the Leases so require in such event this Lease shall continue in effect and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, rent shall be made available under the conditions and abated, if at all, in the manner specified provided in this Article 16, or (ii) elect not to effect such repairs and instead terminate this Lease, by notifying Tenant in writing of such termination within sixty (60) days after Landlord learns of the necessity for repairs as a result of damage, such notice to include a termination date giving Tenant sixty (60) days to vacate the Premises. If neither Landlord nor Tenant have terminated this Lease and the repairs are not actually completed within two hundred ten (210) days after the date Landlord learns of the necessity for repairs as a result of the damage (which two hundred ten (210) day period shall be extended by Force Majeure and by any delays resulting from the acts or omissions of Tenant and/or its agents, employees or contractors), Tenant shall have the right to terminate this Lease within five (5) business days after the end of such period, by notice to Landlord (the "Damage Termination Notice"), effective as of the date set forth in the Damage Termination Notice (the "Damage Termination Date"), which Damage Termination Date shall not be less than five (5) business days following paragraphthe end of such period. Notwithstanding the foregoing, if Tenant delivers a Damage Termination Notice to Landlord, then Landlord shall have the right to suspend the occurrence of the Damage Termination Date for a period ending thirty (30) days after the Damage Termination Date set forth in the Damage Termination Notice by delivering to Tenant, within five (5) business days of Landlord's receipt of the Damage Termination Notice, a certificate of Landlord's contractor responsible for the repair, restoration, replacement or rebuilding repair of improvements on the Mortgaged Property to a condition of at least equal value as existed damage certifying that it is such contractor's good faith judgment that the repairs shall be substantially completed within thirty (30) days after the Damage Termination Date. If repairs shall be substantially completed prior to the expiration of such thirty (30) day period, then the Damage Termination Notice shall be of no force or effect but if the repairs shall not be substantially completed within such thirty (30) day period, then this Lease shall terminate upon the expiration of such thirty (30) day period. Upon any such termination of this Lease pursuant to this Article 16, Tenant shall pay the Monthly Basic Rental and Additional Rent, properly apportioned up to such date of termination, and both parties hereto shall thereafter be freed and discharged of all further obligations hereunder, except as provided for in provisions of this Lease which by their terms survive the expiration or earlier termination of the Term. Initials: ------- ------- In addition to the foregoing, Landlord may elect to terminate this Lease if the Project shall be damaged by fire or other casualty or cause, whether or not the Premises are affected, and the damage is not fully covered, except for deductible amounts, by Landlord's insurance policies. Finally, if the Premises or the Project is damaged to any substantial extent during the last twelve (12) months of the Term, then notwithstanding anything contained in this Article 16 to the contrary, Landlord shall have the option to terminate this Lease by giving written notice to Tenant of the exercise of such option within sixty (60) days after Landlord learns of the necessity for repairs as the result of such damage. A total destruction of the Project shall automatically terminate this Lease. Except as provided in this Article 16, there shall be no abatement of rent and no liability of Landlord by reason of any injury to or interference with Tenant's business or property arising from such damage or destruction. Otherwisedestruction or the making of any repairs, such net proceeds may be applied by Mortgagee, alterations or improvements in its sole discretion, upon and in reduction or to any portion of the Indebtedness then most remotely to be paid Project or the Premises or in inverse chronological order, or to fixtures, appurtenances and equipment therein. Tenant understands that Landlord will not carry insurance of any kind on Tenant's furniture, furnishings, trade fixtures or equipment, and that Landlord shall not be obligated to repair any damage thereto or replace the cost of rebuilding or restoration of the Mortgaged Property or personal propertysame. HoweverExcept for proceeds relating to Tenant's furniture, if Mortgagee furnishings, trade fixtures and equipment, Tenant acknowledges that Tenant shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net have no right to any proceeds of insurance shall be made available therefor under the conditions and in the manner set forth belowrelating to property damage. Insurance proceeds made available for restoration, With respect to any damage which Landlord is obligated to repair or elects to repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time Tenant, as a material inducement to time (provided no default exists in the or in Landlord entering into this Agreement or in any of the Instruments or any Lease at the time of each disbursement)Lease, after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows irrevocably waives and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds releases its rights under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account Sections 1932 and 1933 of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyCalifornia Civil Code.
Appears in 1 contract
Damage or Destruction. Upon the occurrence of any damage or casualty to the Secured Property or any part thereof, the following shall apply:
(1) Mortgagor will shall give Mortgagee prompt written notice of such damage to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurancecasualty as soon as possible, Mortgagee is hereby authorized to make proof of loss if but not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property later than ten (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon 10) days from the date such damage or casualty occurs.
(2) All proceeds of such expense at insurance (“Proceeds”) paid or to be paid pursuant to any of the highest default rate set forth in the Notes, policies maintained pursuant to this Mortgage shall be added payable to Mortgagee. Mortgagor hereby authorizes and become a directs any affected insurer to make payment of the Proceeds directly to Mortgagee. Mortgagee may commingle, with other monies in Mortgagee’s possession, all Proceeds received by Mortgagee. All such Proceeds shall constitute additional security for the Obligations and Mortgagor shall not be entitled to the payment of interest thereon. So long as no Event of Default then exists, Mortgagor MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT Loan No. 374-0366 096780 000064 DALLAS 2814275.4 Florida may settle, adjust or compromise all claims for loss, damage or destruction pursuant to any policy or policies of insurance provided that such claim does not exceed $1,000,000.
(3) Mortgagee shall have the option, in its discretion, and without regard to the adequacy of its security hereunder, of applying all or part of the Indebtedness and Proceeds to (a) the Allocated Loan Amount for the applicable Individual Property, whether or not the Obligations are then due, in such order as Mortgagee shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgageedetermine in accordance with applicable law, upon or in reduction of (b) the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding repair or restoration of the improvements on Secured Property, (c) reimburse Mortgagee for its actual costs and expenses in connection with the Mortgaged Property. Howeverrecovery of the Proceeds, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired any, or rebuilt, then the repair, restoration, replacement or rebuilding (d) any combination of the improvements on the Mortgaged Property foregoing.
(4) Nothing herein contained shall be deemed to a condition of at least equal value excuse Mortgagor from repairing or maintaining the Secured Property as prior to such provided in Section 1.05 or restoring all damage or destructiondestruction to the Secured Property, regardless of whether there are Proceeds available or whether the Proceeds are sufficient in amount, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss application or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved release by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof Proceeds shall not cure or waive any Event of Default or notice of default hereunder pursuant to this Mortgage or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partynotice.
Appears in 1 contract
Samples: Mortgage, Assignment of Leases and Rents and Security Agreement (Industrial Income Trust Inc.)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to or destruction of any In the event improvements on the Mortgaged Property premises are damaged by any casualty which is covered under an insurance policy required to be maintained pursuant to Paragraph 10, then Landlord may at Landlord's option, either (a) repair such damage as soon as reasonably possible at Landlord's expense, in which event this Lease shall continue in full force and effect, or (b) give written notice to personal property used in Tenant within thirty (30) days after the operation date of occurrence of such damage of Landlord's intention to cancel and terminate this Lease as of the Mortgaged Property date of the occurrence of the damage. In the event Landlord elects to terminate this lease, Tenant shall have the right within ten (10) days after receipt of the required notice to notify Landlord in writing of Tenant's intention to repair such damage at Tenant's expense, without reimbursement from Landlord, in which event this Lease shall continue in full force and in case effect, and Tenant shall proceed to make such repairs as soon as reasonably possible. If Tenant does not give such notice within ten (10) day period this Lease shall be cancelled and terminated as of loss the date of the occurrence of such damage. If the premises are totally destroyed during the term of this Lease from any cause whether or not covered by policies the insurance required under Paragraph 10 (including any destruction required by any authorized public authority), this Lease shall automatically terminate as of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at total destruction. If the highest default rate set forth in premises are partially destroyed or damaged during the Notes, shall be added to and become a part last six (6) months of the Indebtedness term of this Lease, Landlord may at Landlord's option, cancel and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction terminate this lease as of the Indebtedness then most remotely date of the occurrence of the damage by giving written notice to be paid, without a prepayment feeTenant of Landlord's election to do so within thirty (30) days after the date of such damage by fire or other cause, or to make any restoration or replacement of any panelings, decorations, office fixtures, partitions, railings, ceilings, floor covering, equipment, machinery or fixtures or any other improvements or property installed in the cost premises by Tenant or at the direct or indirect expense of rebuilding Tenant. Tenant shall be required to restore or replace same in the event of damage. If the premises are partially destroyed or damaged and Landlord or Tenant repairs them pursuant to this Lease, the rent payable hereunder for the period during which such damage and repair continues shall be abated in proportion to the extent which Tenant's use of the premises is impaired. Except for abatement of rent, if any, Tenant shall have no claim against Landlord for any damage suffered by reason of such damage, destruction, repair or restoration. If Landlord shall be obligated to repair or restore the premises and shall not commence such repair or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed within ninety percent (90%) of the value of the work performed from days after such obligation shall accrue. Tenant may, at Tenant's option, cancel and terminate this Lease by written notice to Landlord at any time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the worksuch repair or restoration. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account In such event this Lease shall terminate as of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release date of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partynotice.
Appears in 1 contract
Samples: Lease Agreement (Spectranetics Corp)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage (a) In the event the Building and/or any insured alterations are damaged by fire or other perils covered by Landlord’s extended coverage insurance to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation an extent not exceeding twenty-five percent (25%) of the Mortgaged Property full insurable value thereof and in case if the damage thereto is such that the Building and/or any insured alterations may be repaired, reconstructed or restored within a period of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or ninety (90) days from the lessees under any lease of any portion date of the Mortgaged Property initial occurrence of such casualty and Landlord will receive insurance proceeds sufficient to cover the cost of such repairs, Landlord shall commence and proceed diligently with the work of repair, reconstruction and restoration and the Lease shall continue in full force and effect. If such work or repair, reconstruction and restoration is such as to require a period longer than ninety (“Lease” 90) days or “Leases”if the cost of the repair exceeds twenty-five percent (25%) of the full insurable value thereof, or if said insurance proceeds will not be sufficient to cover the cost of such repairs, Landlord either may elect to so repair, reconstruct or restore the Building and/or any insured alterations and the Lease shall continue in full force and effect or Landlord may elect not to repair, reconstruct or restore the Building and/or any insured alterations and the Lease shall in such event terminate. Under any of the conditions of this Paragraph 22(a). Any expenses incurred by Mortgagee in the collection , Landlord shall give written notice to Tenant of insurance proceeds, together with interest thereon its intention within thirty (30) days from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part event of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. OtherwiseIn the event Landlord elects not to restore said Building and/or any insured alterations, such net proceeds may this Lease shall be applied by Mortgagee, in its sole discretion, upon and in reduction deemed to have terminated as of the Indebtedness date of such partial destruction.
(b) Upon any termination of this Lease under any of the provisions of this Paragraph 22, the parties shall be released thereby without further obligation to the other from the date possession of the Premises is surrendered to Landlord except for items which have theretofore accrued and are then most remotely unpaid and any indemnity obligation of Tenant.
(c) In the event of repair, reconstruction and restoration by Landlord as herein provided, the rent provided to be paid in inverse chronological orderunder this Lease shall be abated proportionately with the degree to which Tenant’s use of the Premises is impaired during the period of such repair, reconstruction or restoration commencing on the date of initial occurrence and concluding on the earlier to occur of: (i) the date of substantial completion, as reasonably determined by Landlord, of the repair, reconstruction and restoration or (ii) Tenant's re-use of the previously impaired portion of the Premises, except to the cost extent of rebuilding any business interruption insurance proceeds to which Tenant may be entitled in connection with the Premises. Tenant shall not be entitled to any compensation or restoration damages in excess of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and rental abatement herein provided for loss in the manner set forth below. Insurance proceeds made available for restorationuse of the whole or any part of the Premises and/or any inconvenience or annoyance occasioned by such damage, repair, replacement reconstruction or rebuilding restoration.
(d) Tenant shall not be released from any of its obligations under this Lease except to the extent and upon the conditions expressly stated in this Paragraph 22. Notwithstanding anything to the contrary contained in this Paragraph 22, should Landlord be delayed or prevented from repairing or restoring the damaged Premises within six (6) months after the occurrence of such damage or destruction by reason of acts of God, war, governmental restrictions, inability to procure the necessary labor or materials, or other cause beyond the control of Landlord, Landlord shall be relieved of its obligation to make such repairs or restoration and Tenant shall be released from its obligations under this Lease as of the improvements on end of said six (6) month period.
(e) In the Mortgaged Property event that damage is due to any cause not covered under any insurance required to be maintained by Landlord hereunder, Landlord may elect to terminate this Lease.
(f) It is hereby understood that if Landlord is obligated to or elects to repair or restore as herein provided, Landlord shall be disbursed from time obligated to time make repairs or restoration only of those portions of the Building and the Premises which were originally provided at Landlord’s expense or which were insured by either party and the proceeds of such insurance have been received by Landlord. The repair and restoration of items not provided at Landlord’s expense shall be the obligation of Tenant.
(provided no default exists in g) Notwithstanding anything to the or contrary contained in this Agreement Xxxxxxxxx 00, Xxxxxxxx shall not have any obligations whatsoever to repair, reconstruct or in restore the Premises when the damage resulting from any casualty covered under this Paragraph 22 occurs during the last twelve (12) months of the Instruments term of this Lease or any Lease at the time extension hereof.
(h) The provisions of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows California Civil Code Sections 1932 and closings 1933 are hereby waived by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyTenant.
Appears in 1 contract
Samples: Office Lease
Damage or Destruction. Mortgagor will give Mortgagee prompt notice In the event the Leased Premises (or a material portion thereof) shall be destroyed or so damaged or injured by fire or other casualty during the term of damage this Lease, whereby the same shall be rendered untenantable, then Landlord may, within sixty (60) days of such occurrence, terminate this Lease or any renewal thereof as of the date of casualty. If Landlord does not elect to or destruction of terminate this Lease, Landlord shall cause the Leased Premises to be repaired (except as to any improvements on made by Tenant) within one hundred eighty (180) days from the Mortgaged Property date of casualty. If said Leased Premises are not rendered tenantable within said time (subject to any delay caused by a force majeure), either party shall have the option to cancel this Lease by written notice to the other. Landlord shall notify Tenant promptly after a casualty as to whether Landlord elects to cancel the Lease or to personal property used cause the Leased Premises to be repaired. In the event the Lease is terminated or cancelled as herein provided, Rent shall be paid only to the date of such fire or casualty. During any time that the Leased Premises are untenantable due to causes set forth in this paragraph, the operation Rent or a just and fair proportion thereof shall be abated. Notwithstanding the foregoing, should the cause of such damage, destruction or injury to the Leased Premises originate from the Leased Premises or occur by reason of the Mortgaged Property negligence of Tenant or any employee, agent, licensee, patron or invitee of Tenant, Tenant shall not have the right to cancel this Lease and no abatement of Rent shall occur. As to such tenant damage, Landlord shall have the right, but not the obligation, to render the Leased Premises tenantable. If Landlord elects to repair said damage and render the Leased Premises tenantable, all available insurance proceeds for the cost thereof shall be paid to Landlord, and the balance of the cost of such repairs shall be paid by Tenant when due. If Landlord elects not to repair such tenant damage, Tenant shall make such repairs pursuant to paragraph 15. and shall be entitled to any insurance proceeds received in case respect to the cost thereof. Landlord shall have no liability for loss or interruption of loss covered business, or any inconvenience or annoyance to Tenant occasioned by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor the casualty or the lessees under arising from any lease repair of any portion of the Mortgaged Property (“Lease” Building or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceedsLeased Premises, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings unless caused solely by the title company and fees and expenses gross negligence or willful misconduct, whether by omission or commission, of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement Landlord its employees or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyguests.
Appears in 1 contract
Samples: Standard Retail Lease Agreement (Pointe Financial Corp)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to In the event that the Premises are damaged or destruction of any improvements on the Mortgaged Property destroyed by fire, storm or to personal property used in the operation other casualty so that fifty percent (50%) or more of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, Premises shall be added to and become a part rendered untenantable or unusable, payments of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds Rent may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration maydiscontinued, at the option of Mortgageethe Tenant, until the Premises may be applied either on account rebuilt or restored to their former condition. The determination whether the Premises shall be rebuilt or restored shall rest solely with the Landlord, which determination Landlord shall make as soon as practicable but in no event later than ninety (90) days following the date of occurrence that renders such portion of the Indebtedness Premises untenantable or unusable. Should Landlord decide not to rebuild or restore, then most remotely this Lease shall terminate and neither party shall be further obligated to the other except that Tenant shall be paid in inverse chronological orderresponsible to pay Landlord all Rent for the current Lease Year owed to Landlord up to the date of such termination, plus such amount or amounts as may be owed to Landlord on termination, for which Tenant is responsible under any provision of this Lease, including without a prepayment feelimitation, or be paid unpaid rent attributable to any person prior period. Should Landlord decide to rebuild or persons otherwise entitled thereto. Application restore, then any such rebuilding or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest restoration shall be allowed on account of any such proceeds commenced as quickly as possible and diligently pursued to completion. In the event that the Premises are damaged or destroyed by fire, storm or other funds held casualty so that less than fifty percent (50%) of the Premises shall be rendered untenantable or unusable, then payment of Rent may be reduced, at the option of Tenant, in the hands same proportion as the number of Mortgagee square feet of the Premises which is untenantable or unusable bears to the disbursing partytotal number of square feet of Premises which existed prior to the loss or destruction. If less than fifty percent (50%) of the Premises is damaged or destroyed, Landlord shall rebuild or restore the Premises to its former condition, unless the portion of the Premises untenantable or unusable occurs during the last Lease term of the Lease.
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice 11.1 If the Building or the Premises, or any part thereof, is damaged by fire or other casualty before the Commencement Date or during the Lease Term, and this Lease is not terminated pursuant to sections 11.2 or 11.3 hereof, Landlord shall repair such damage and restore the Building and the Premises to substantially the same condition in which the Building and the Premises existed before the occurrence of damage such fire or other casualty (provided that Landlord shall have no obligation to restore any above-Building standard improvements or destruction of any improvements on the Mortgaged Property or to personal property used Alterations in the operation Premises, unless the cost thereof is paid by Tenant in advance of such restoration, or any Alterations made by or for Tenant in the Premises following the Commencement Date) and this Lease shall, subject to the provisions of this Article 11, remain in full force and effect. If such fire or other casualty damages the Premises or common areas of the Mortgaged Property Building necessary for Tenant's use and in case occupancy of loss covered by policies of insurance, Mortgagee is hereby authorized the Premises and Tenant ceases to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of use any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred Premises as a result thereof, then during the period the Premises are rendered untenantable by Mortgagee such damage Tenant shall be entitled to a reduction in Monthly Rent in the collection proportion that the area of the Premises rendered unusable by such damage bears to the total area of the Premises. Landlord shall not be obligated to repair any damage to, or to make any replacement of, any movable furniture, equipment, trade fixtures or personal property in the Premises or Alterations made by or for Tenant in the Premises following the Commencement Date. Tenant shall, at Tenant's sole cost and expense, repair and replace all such movable furniture, equipment, trade fixtures, personal property and any Alterations made by or for Tenant in the Premises following the Commencement Date. Such repair and replacement by Tenant shall be done in accordance with Article 8 hereof. Tenant hereby waives California Civil Code sections 1932(2) and 1933(4), or any successor statute, providing for termination of hiring upon destruction of the thing hired.
11.2 If the Building or the Premises, or any part thereof, is damaged by fire or other casualty before the Commencement Date or during the Lease Term and (a) such fire or other casualty occurs during the last twelve (12) months of the Lease Term and the repair and restoration work to be performed by Landlord in accordance with section 11.1 hereof cannot, as reasonably estimated by Landlord, be completed within two (2) months after the occurrence of such fire or other casualty, or (b) the insurance proceedsproceeds received by Landlord in respect of such damage are not adequate to pay the entire cost, together as reasonably estimated by Landlord, of the repair and restoration work to be performed by Landlord in accordance with interest thereon from section 11.1 hereof, or (c) the repair and restoration work to be performed by Landlord in accordance with section 11.1 hereof cannot, as reasonably estimated by Landlord, be completed within six (6) months after the occurrence of such fire or other casualty, then, in any such event, Landlord shall have the right, by giving written notice to Tenant within sixty (60) days after the occurrence of such fire or other casualty, to terminate this Lease as of the date specified in such notice, which date shall be not less than thirty (30) days nor more than sixty (60) days after the date such notice is given.
11.3 A total destruction of the Building shall automatically terminate this Lease effective as of the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or total destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.
Appears in 1 contract
Samples: Lease (Dexcom Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice (a) In the event of damage to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” TDD Project resulting from fire or “Leases”). Any expenses incurred other casualty during the Term, the net proceeds of any insurance relating to such damage or destruction shall be paid into an account controlled by Mortgagee Developer’s lender, if any, that has a security interest in the collection portion of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth TDD Project that was damaged (or in the Notesevent such portion of the District is not mortgaged for the benefit of Developer’s lender, then such account shall be controlled by Developer), and used in accordance with this Section of the Agreement ("Casualty Escrow").
(b) If, at any time during the Term, the Project or any part thereof shall be damaged or destroyed by a casualty (the "Damaged Facilities"), Developer, at its sole cost and expense, shall be added commence and thereafter proceed as promptly as possible to repair, restore and become a part of replace the Indebtedness Damaged Facilities as nearly as possible to their condition immediately prior to the casualty and shall be reimbursed by Mortgagor entitled to Mortgagee immediately draw upon demandthe Casualty Escrow for payment of said costs. Such net proceeds may Funds in the Casualty Escrow shall not be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the used for any purpose other than repair, restoration, and/or replacement or rebuilding of the improvements on Damaged Facilities until such repair, restoration, and/or replacement required by this Section is complete.
(c) Nothing in this section will require the Mortgaged Property shall be Developer to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and expend funds in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification excess of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, Casualty Escrow for the repair, restoration, restoration and/or replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely Damaged Facilities.
(d) Notwithstanding anything in this Section to the contrary, the parties hereby agree that:
(i) The requirement in this Section that net casualty insurance proceeds be paid deposited into a Casualty Escrow, and Developer’s obligation to repair, restore, and replace the Damaged Facilities, shall not apply where the Damaged Facilities consisted of non-retail operations that do not generate TDD Sales Tax; and
(ii) Upon the earlier of (x) receipt by KDOT of TDD Sales Tax proceeds in inverse chronological orderthe amount of the KDOT Payment, or to (y) the cost of rebuilding termination or restoration expiration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this KDOT Agreement, such net proceeds this Section of insurance the Agreement shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement of no further force or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyeffect.
Appears in 1 contract
Samples: Development Agreement
Damage or Destruction. Mortgagor will give Mortgagee prompt notice (a) Seller shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to keep all insurance policies currently maintained with respect to the Terminal Operations, or suitable replacements or renewals, in full force and effect through the close of business on the Closing Date. In the event of any material damage to or destruction of any improvements on Purchased Asset (other than normal wear and tear) after the Mortgaged Property or date hereof and prior to personal property used the Closing (in the operation of the Mortgaged Property and in case of loss covered by policies of insuranceany such case, Mortgagee is hereby authorized a “Casualty Loss”), Seller shall give notice thereof to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of Purchaser. If any portion of such Casualty Loss is covered by insurance policies, all right and claim of Seller and its Subsidiaries to any proceeds of insurance for such Casualty Loss shall be assigned to Purchaser at Closing (or if previously received by Seller or any of its Subsidiaries and not used prior to the Mortgaged Property Closing Date to repair any damage or destruction, paid to Purchaser), and Purchaser shall complete the Purchase as provided in this Agreement without any reduction in the Initial Purchase Price with respect to the portion of such Casualty Loss that is covered by insurance. If any portion of such Casualty Loss is not covered by insurance policies, at Seller’s election, (i) Purchaser shall complete the Purchase as provided in this Agreement and the Initial Purchase Price shall be reduced by an amount equal to Seller’s good faith estimate of the cost to repair or restore the Purchased Assets affected by such uninsured Casualty Loss (the “Lease” Affected Assets”) to their condition immediately prior to the occurrence of such uninsured Casualty Loss (to the extent not so repaired or restored by Seller or any of its Subsidiaries) or (ii) the Affected Assets shall be excluded from the Purchased Assets and the Initial Purchase Price shall be reduced by an amount equal to Purchaser’s good-faith estimate of the fair market value of the Affected Assets immediately prior to the Casualty Loss (the “LeasesReduction Amount”).
(b) (i) If, within thirty (30) days following Seller’s exclusion of Affected Assets at the Closing pursuant to clause (ii) of Section 6.12(a), Seller delivers to Purchaser a notice objecting to the Reduction Amount, Seller and Purchaser shall together select an appraiser within fifteen (15) days after the expiration of said thirty (30) day period to determine the fair market value of the Affected Assets immediately prior to the Casualty Loss. If the parties are unable to agree upon an appraiser by the expiration of such fifteen (15) day period, each of Seller, on the one hand, and Purchaser, on the other hand, shall select its own appraiser within seven (7) days after such fifteen (15) day period and, if either Seller or Purchaser shall fail to appoint its appraiser within such period, the appraiser selected by the other party shall alone serve as appraiser. Any expenses incurred by Mortgagee appraiser acting as such hereunder shall be a nationally recognized U.S. investment bank, firm of valuation consultants or other reputable and experienced appraisers, in each case with expertise in the collection appraisal of insurance proceedsterminals and associated assets. The appraisers shall determine in writing the fair market value of the Affected Assets immediately prior to the Casualty Loss using standard valuation techniques as such appraisers deem appropriate, together but assuming that the Affected Assets were used in connection with interest thereon from third-party, commercial terminal operations. Each of Seller and Purchaser shall be entitled to provide written materials to the appraisers in connection with such appraisal, and each of Seller and Purchaser shall provide all materials reasonably requested by the other party in connection therewith. Each of Seller and Purchaser shall provide each appraiser with the same written materials, if any, it provides the other appraiser in assisting in the determination of the fair market value of the Affected Assets immediately prior to the Casualty Loss. Each party shall use its commercially reasonable efforts to cause any appraiser engaged by such party in accordance with this Section 6.12 to return its appraisal of the fair market value of the Affected Assets immediately prior to the Casualty Loss within thirty (30) days after the date of such expense at appraiser’s engagement by such party.
(ii) If the highest default rate higher of the appraisals exceeds the lower of the appraisals by ten percent (10%) or less, then the fair market value of the Affected Assets immediately prior to the Casualty Loss shall be equal to the average of the two appraisals. If the higher of the appraisals exceeds the lower of the appraisals by more than ten percent (10%), then the two appraisers shall select a third appraiser who shall meet the aforementioned criteria for appraisers. The third appraiser shall appraise the fair market value of the Affected Assets immediately prior to the Casualty Loss within thirty (30) days after the date of its engagement. If the amount of the third appraisal is between the other two appraisals or is equal to either of the other two appraisals, then the fair market value shall be deemed equal to the third appraisal. If the third appraisal is higher than the other two appraisals, then the fair market value shall be deemed equal to the higher of the other two appraisals. If the third appraisal is lower than the other two appraisals, then the fair arket value shall be deemed equal to the lower of the other two appraisals. The fair market value of the Affected Assets as determined pursuant to the appraisal process set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.Section 6.12
Appears in 1 contract
Samples: Purchase and Sale Agreement
Damage or Destruction. Mortgagor will SECTION 12.01. If the Demised Premises or any part thereof shall be damaged by fire or other casualty, Lessee shall give Mortgagee prompt notice thereof to Lessor and Lessor shall proceed (subject to the provisions of this Article) with reasonable diligence to repair or cause to be repaired such damage. Except as provided in Section 12.05, the Fixed Rent shall be abated proportionately to the extent that the Demised Premises shall have been rendered Untenantable (as hereinafter defined), such abatement to be from the date of such damage or destruction to the date the Demised Premises shall no longer be Untenantable.
SECTION 12.02. If the Demised Premises shall be totally damaged or the whole of the Demised Premises shall be rendered Untenantable by fire or other casualty, and Lessor has not terminated this Lease pursuant to Section 12.03 and Lessor has not completed the making of the required repairs and restored and rebuilt the Demised Premises and/or access thereto within one (1) year from the date of such damage or destruction to the level of demising walls only, and such additional time after such date, as shall equal the aggregate period Lessor may have been delayed in doing so by Unavoidable Delays or adjustment of insurance, Lessee may serve notice on Lessor of its intention to terminate this Lease and if within thirty (30) days thereafter, Lessor shall not have substantially completed the making of the required repairs and restored and rebuilt the Demised Premises to the level of demising walls, then in such events, this Lease shall terminate on the expiration of such thirty (30) day period as if such termination date were the Expiration Date, and the Fixed Rent and Additional Rent shall be apportioned as of such date of sooner termination and any prepaid portion of Fixed Rent and Additional Rent for any period after such date shall be refunded by Lessor to Lessee.
A. Premises shall be so damaged by fire or other casualty that substantial alteration or reconstruction shall, in Lessor's reasonable opinion, be required, then and in such events Lessor may, at its option, terminate this Lease and the Term and estate hereby granted by giving Lessee not less than thirty (30) days, nor more than sixty (60) days, notice of such termination, within ninety (90) days after the date of such damage. In the event that such notice of termination shall be given, this Lease and the Term and estate hereby granted shall terminate as of the date provided in such notice of termination (whether or not the Term shall have commenced) with the same effect as if that were the Expiration Date, and the Fixed Rent and Additional Rent shall be apportioned as of such date of sooner termination, mid any prepaid portion of Fixed Rent and Additional Rent for any period after such date shall be refunded by Lessor to Lessee.
B. If the Demised Premises shall be totally damaged or the whole or substantially all of the Demised Premises shall be rendered untenantable by fire or other casualty, and Lessor has not terminated this Lease as provided in Section 12.03.A., Lessor shall notify Lessee, within ninety (90) days after such fire or other casualty, as to the estimated period of time necessary to complete the required repairs and restore and rebuild the Demised Premises to the level of demising walls. If such Lessor's estimate exceeds one (1) year, from the date of such notice, or if Lessor falls to deliver such notice, then in such events, Lessee may serve on Lessor, within thirty (30) days of its receipt of Lessor's notice, or the expiration of the ninety (90) days after such fire or other casualty, as the case may be (time being of the essence with respect thereto), notice of its intention to terminate this Lease on a date which shall be not more than thirty (30) days from the date of Lessee's notice. If Lessee gives notice of its intention to cancel this Lease as provided herein, then in such event, this Lease shall terminate on the expiration of such thirty (30) day period as if such termination date were the Expiration Date, and the Fixed Rent and Additional Rent shall be apportioned as of such date of sooner termination and any prepaid portion of Fixed Rent and Additional Rent for any period after such date shall be refunded by Lessor to Lessee. Lessee's failure to notify Lessor within the thirty (30) day period shall be deemed a waiver of the right to terminate this Lease.
SECTION 12.04. Lessor shall not be liable for any inconvenience or annoyance to Lessee or injury to the business of Lessee resulting in any way from such damage by fire or other casualty or the repair thereof.
SECTION 12.05. Lessee shall restore all improvements made by Lessee to the Demised Premises, at Lessee's sole cost and expense. Nothing herein contained shall relieve Lessee from any liability to the Lessor or to its insurers in connection with any damage to the Property, Building or Demised Premises by fire or other casualty if Lessee shall be legally liable in such respect. Notwithstanding any of the foregoing provisions of this Article, if by reason of some action or inaction on the part of Lessee or any of its employees, agents, officers, directors or contractors, Lessor or the holder of the Mortgage or Superior Lease shall be unable to collect all of the insurance proceeds (including rent insurance proceeds) applicable to damage or destruction of the Demised Premises by fire or other cause, then, without prejudice to any other remedy which may be available against Lessee, the abatement of Fixed Rent provided for in this Article shall not be effective to the extent of the uncollected insurance proceeds.
SECTION 12.06. This Lease shall be considered an express agreement to the contrary pursuant to New York REAL PROPERTY LAW Section 227 governing any case of damage to or destruction of the Demised Premises or any improvements on the Mortgaged Property part thereof by fire or to personal property used other casualty, and any law providing for such a contingency in the operation absence of such express agreement, now or hereafter enacted, shall have no application in such case to the Mortgaged Property extent inconsistent with this Lease.
SECTION 12.07. Lessee shall, at its own cost and in case expense, remove all of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon Lessee's property from the date of such expense at Demised Premises as Lessor shall require in order to repair and restore the highest default rate set forth in the Notes, Demised Premises and Lessor shall not be added obligated to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding commence repairs or restoration of the improvements on Demised Premises until such property has been removed by Lessee from the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding damaged portion of the improvements on the Mortgaged Property shall be Demised Premises. Should Lessee neglect, fail, or refuse to a condition of at least equal value as prior to remove its aforesaid property within thirty (30) days after such damage or destruction, and such net proceeds the provisions for abatement of insurance Fixed Rent contained herein shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work suspended and of no force and effect whatsoever until Lessee has completed such removal. In no event shall the diligent Lessor be required to repair or replace Lessee's merchandise, trade fixtures, furniture, furnishings, inventory and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyequipment.
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice In the event of any damage to or destruction of to the Premises by fire or other cause during the term hereof, the following provisions apply:
a. If the Building is damaged by fire or any improvements on the Mortgaged Property or other cause to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to extent that the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement as estimated by Landlord, will equal or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety twenty percent (9020%) of the then replacement value of the work performed from time to time and at all times the undisbursed balance Building (exclusive of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee foundations) just prior to the commencement occurrence of the workdamage, or if Landlord believes in good faith that it will be unable to restore the Building or Premises within one hundred eighty (180) days following a casualty, then Landlord and Tenant may each, not later than thirty (30) days following the damage, give the other written notice of its election to terminate this Lease.
b. If neither Landlord nor Tenant elects to terminate this Lease, Landlord will restore the Building and the Premises with reasonable promptness, subject to delays beyond Landlord’s control and delays in the making of insurance adjustments by Landlord, to as near the condition which existed immediately prior to the casualty as may be reasonably possible, provided however, Landlord will not be required to be responsible to restore any improvements made by Tenant subsequent to the Commencement Date. Any surplus which may remain out Tenant will have no right to terminate this Lease except as herein provided.
c. In the event of said insurance proceeds after payment of costs of building and restoration mayan election by either party to terminate this Lease, at this Lease will be deemed to terminate on the option of Mortgagee, be applied either on account date of the Indebtedness then most remotely to receipt of the notice of election and all rentals will be paid in inverse chronological order, without a prepayment fee, or be paid up to any person or persons otherwise entitled theretothat date. Application or release of proceeds under Tenant will have no claim against Landlord for the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account value of any unexpired Term of Lease.
d. In any case where damage to the Building will materially affect the Premises so as to render them unsuitable in whole or in part for the purposes for which they are hereunder, then, unless such proceeds destruction was wholly or other funds held partially caused by the gross negligence, willful misconduct or breach of the terms of this Lease by Tenant, its employees, contractors or licensees, Tenant's obligation to pay monthly installments of Base Rent and Additional Rent will axxxx during such period of time that the Premises are untenantable in the hands proportion that the untenantable portions of Mortgagee the Premises bears to the entire Premises. If the destruction or damage was wholly or partially caused by gross negligence, willful misconduct or breach of the disbursing partyterms of this Lease by Tenant as aforesaid and if Landlord elects to rebuild, the rent will not axxxx and the Tenant will remain liable for the same. When Landlord has completed its work required hereunder, Tenant's obligation to pay Base Rent and Additional Rent will resume and Tenant will promptly complete the restoration of the Premises to the condition which existed immediately prior to the casualty.
Appears in 1 contract
Samples: Commercial Lease (Aetrium Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice If at any time after the execution of damage to this lease, the Premises, or destruction of any improvements portion thereof, should be damaged or destroyed by any casualty insured under any fire and extended coverage insurance policy or policies required on the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely Landlord to be paidmaintained hereunder, without a prepayment fee, or Landlord shall forthwith and immediately commence to repair and restore the Premises so far as practicable to the cost of rebuilding or restoration of condition the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as Premises were in immediately prior to such damage or destruction, and Landlord shall complete the same within a reasonable time, and the rent from the time of such net proceeds damage or destruction until the completion of insurance repair and restoration shall be made available therefor equitably abated in proportion to the extent and value of the space which is unusable during said period for the purpose of operating Tenant's business. Tenant agrees to notify Landlord in writing not less than thirty (30) days prior to the date Tenant opens for business in the Premises of the actual cost of all permanent leasehold improvements and betterments installed or to be installed by Tenant in the Premises (whether same have been paid for entirely or partially by Tenant), but exclusive of Tenant's personal property, moveable trade fixtures and contents. Similar notifications shall be given to Landlord not less than thirty (30) days prior to the commencement of any proposed alterations, additions or improvements to the Premises by Tenant (if same are permitted under the conditions and in terms of this lease) subsequent to the manner set forth belowinitial construction of the Premises. So long as there exists no Event of Default (as defined in If Tenant fails to comply with the Loan Agreement)foregoing provisions, and provided any loss or damage cannotLandlord shall sustain by reason thereof shall be borne by Tenant and shall be paid immediately by Tenant upon receipt of a xxxx therefor and evidence of such loss; and, in addition to any other rights or remedies reserved by Landlord under this lease, Landlord's obligation to repair, replace and/or rebuild the Premises to the condition in which they existed prior to such loss. In either case, Tenant shall pay the cost of such restoration. In the event the Premises shall be untenantable, the Annual Rent and other sums payable hereunder shall xxxxx to the extent of proceeds actually received by Landlord under any rent insurance policy. No damage or deduction to the Premises shall allow Tenant to surrender possession of the Premises nor affect Tenant's liability for the payment of rent or any other covenant herein contained, except as may be specifically provided in this lease. Notwithstanding anything else to the contrary contained in this Section or elsewhere in this lease, Landlord, at its option, may terminate this lease on thirty (30) days notice to Tenant if--
(a) the Premises and/or building in which the Premises are located shall be damaged or destroyed as a result of an occurrence which is not covered by Landlord's insurance; or
(b) the Premises shall be damaged or destroyed during the last two (2) years of the term or the last 25% of the term, whichever is greater, and, in such event, the Tenant also shall have the option to terminate this lease on thirty (30) days written notice to Landlord; or
(c) any or all of the building or common areas of the Complex are damaged (whether or not the Premises are damaged) to such an extent that, in the sole judgment of MortgageeLandlord, result in the termination, cancellation Complex cannot be operated as an economically viable unit. Tenant shall give to Landlord prompt written notice of any damage to or modification destruction of any portion of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed Premises resulting from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds fire or other funds held in the hands of Mortgagee or the disbursing partycasualty.
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice If the leased premises or the building should be damaged or destroyed during the term of damage this Lease by fire or other insurable casualty, Landlord shall, subject to or destruction the time that elapses due to adjustment of any improvements on the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of fire insurance, Mortgagee is hereby authorized repair and/or restore the same to make proof of loss if not promptly made by Mortgagor or substantially the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee condition it was in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds except as otherwise noted in this Paragraph. Landlord's obligation under this Paragraph shall, in no event, exceed the scope of insurance the work required to be done by Landlord in the original construction of the building. Landlord shall not be required to replace or restore any trade fixtures, signs or other installations theretofore installed by Tenant. Rent payable under this Lease shall be made available therefor under abated proportionately according to the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification floor area of the Leases (if any)leased premises which is usable by Tenant, and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, there shall be made available under the conditions and in the manner specified in the following paragraph, not abatement of rent. Such abatement shall continue for the repairperiod commencing with such damage or destruction and ending with the completion by Landlord of such work of repair and/or reconstruction as Landlord is obligated to do. If, restorationhowever, replacement the leased premises or rebuilding of improvements on the Mortgaged Property building should be damaged or destroyed by any cause so that Landlord shall decide to a condition of at least equal value as existed prior demolish or to completely rebuild the leased premises or the building, Landlord may, within sixty days after such damage or destruction, give Tenant written notice of such decisions and thereupon this Lease shall be deemed to have terminated as of the date of the damage or destruction and Tenant shall immediately quit and surrender the leased premises to Landlord. OtherwiseTenant is to provide adequate insurance to cover tenant improvements and equipment. Confession of Judgement in Ejectment: Should the said Tenant break, or even attempt to break, evade, or attempt to evade, any of the covenants or conditions of this Lease, or should he make any assignment for the benefit of creditors, or commit any act of bankruptcy, or become insolvent, than all of the said Tenant's right, title and interest in the within Lease shall forthwith cease, end and determine, and the said Landlord shall be entitled to the immediate possessions of the herein leased premises and the said Landlord may file an action in ejectment in the Court of Common Pleases of Centre County, PA for said premises as if a summons had been regularly issued out of said Court at the suit of the said Landlord against the said Tenant and had been duly served and so returned by the Sheriff, and upon the filing of a suggestion covenants of such net proceeds may be applied Lease file therein by Mortgageesaid Landlord, in its sole discretionor any agent of the said Landlord, the said Landlord for the premises herein leased and to direct the immediate issuing of a Write and Habere Facias Possessionem, with the Clause of Fieri Facias for costs, waiving all irregularities, without notice, and without asking Leave of Court, and without Stay of Execution, Right of Appeal, and Right to have Judgement Opened. And it is further agreed that, upon the breach by the Tenant of any Agreement of covenant herein, the Landlord may, within 10 days written notice via certified mail to rectify the situation, re-enter and in reduction repossess said premises and re-rent the same or substitute other tenants therein and exercise general supervision and control over said premises for the balance of said term, and that no such re-entry or re-letting or exercise of right or control over said premises by the Landlord shall be construed as a surrender or acceptance of a surrender of said premises by the Tenant, but shall be an option granted by the Landlord and reserved by the Landlord to protect its rights and those of the Indebtedness then most remotely Owner of said property; that no such re-entry, substitution of tenants or re- letting of said premises shall be construed as abatement of the rental, hereinabove agreed to be paid in inverse chronological orderget paid, or as a waiver of the Tenant's liability therefore, provided however, that any amount so received from any substituted Tenant after deducting all proper charges, costs, expenses and damages, including any property attorney's fees, incurred by the Landlord, shall be credited to the cost Tenant who shall in any and all such events remain liable for the full amount of rebuilding or restoration of the Mortgaged Property or personal propertyrental therefore. However, if Mortgagee This Lease shall require that the Mortgaged Property be repaired or rebuilt interpreted and construed in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding laws of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any State of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows Pennsylvania. Tenant is responsible for contents and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyinsuring same.
Appears in 1 contract
Samples: Lease Agreement (Fieldworks Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice 11.1 If the Building or the Premises, or any part thereof, is damaged by fire or other casualty before the Commencement Date or during the Lease Term, and this Lease is not terminated pursuant to sections 11.2 or 11.3 hereof, Landlord shall repair such damage and restore the Building and the Premises to substantially the same condition in which the Building and the Premises existed before the occurrence of damage such fire or other casualty (provided that Landlord shall have no obligation to restore any above- Building standard improvements or destruction of any improvements on the Mortgaged Property or to personal property used Alterations in the operation Premises, unless the cost thereof is paid by Tenant in advance of such restoration, or any Alterations made by or for Tenant in the Premises following the Commencement Date) and this Lease shall, subject to the provisions of this Article 11, remain in full force and effect. If such fire or other casualty damages the Premises or common areas of the Mortgaged Property Building necessary for Tenant's use and in case occupancy of loss covered by policies of insurance, Mortgagee is hereby authorized the Premises and Tenant ceases to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of use any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred Premises as a result thereof, then during the period the Premises are rendered untenantable by Mortgagee such damage Tenant shall be entitled to a reduction in monthly rent in the collection proportion that the area of the Premises rendered unusable by such damage bears to the total area of the Premises. Landlord shall not be obligated to repair any damage to, or to make any replacement of, any movable furniture, equipment, trade fixtures or personal property in the Premises or Alterations made by or for Tenant in the Premises following the Commencement Date. Tenant shall, at Tenant's sole cost and expense, repair and replace all such movable furniture, equipment, trade fixtures, personal property and any Alterations made by or for Tenant in the Premises following the Commencement Date. Such repair and replacement by Tenant shall be done in accordance with Article 8 hereof. Tenant hereby waives California Civil Code sections 1932(2) and 1933(4), or any successor statute, providing for termination of hiring upon destruction of the thing hired.
11.2 If the Building or the Premises, or any part thereof, is damaged by fire or other casualty before the Commencement Date or during the Lease Term and (a) such fire or other casualty occurs during the last twelve (12) months of the Lease Term and the repair and restoration work to be performed by Landlord in accordance with section 11.1 hereof cannot, as reasonably estimated by Landlord, be completed within two (2) months after the occurrence of such fire or other casualty, or (b) the insurance proceedsproceeds received by Landlord in respect of such damage are not adequate to pay the entire cost, together as reasonably estimated by Landlord, of the repair and restoration work to be performed by Landlord in accordance with interest thereon from section 11.1 hereof, or (c) the repair and restoration work to be performed by Landlord in accordance with section I I.I hereof cannot, as reasonably estimated by Landlord, be completed within six (6) months after the occurrence of such fire or other casualty, then, in any such event, Landlord shall have the right, by giving written notice to Tenant within sixty (60) days after the occurrence of such fire or other casualty, to terminate this Lease as of the date specified in such notice, which date shall be not less than thirty (30) days nor more than sixty (60) days after the date such notice is given.
11.3 A total destruction of the Building shall automatically terminate this Lease effective as of the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or total destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.
Appears in 1 contract
Samples: Lease
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to (a) If the Building should be totally destroyed by fire, tornado or destruction of any improvements on other casualty, or if the Mortgaged Property Building should be so damaged thereby that rebuilding or to personal property used repairs cannot in Landlord's reasonable estimation be completed within the operation of Restoration Period, this Lease shall terminate and the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or Rent shall be abated during the lessees under any lease of any unexpired portion of the Mortgaged Property (“this Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from effective upon the date of the occurrence of such expense at damage.
(b) If the highest default rate set forth Building should be damaged by any peril covered by insurance to be provided by Landlord under Section 12.01, but only to such extent that rebuilding or repairs can in Landlord's reasonable estimation be completed within the NotesRestoration Period, shall or if the rebuilding or repairs cannot in Landlord's reasonable estimation be added completed within the Restoration Period, but the parties nonetheless agree to and become a part continue this Lease pending Landlord's completion of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuiltreconstruction, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property this Lease shall be to a condition of at least equal value as prior to such damage or destructionnot terminate, and such net proceeds of insurance Landlord shall be made available therefor under at its sole cost and expense thereupon proceed with reasonable diligence to rebuild and repair the conditions and Building to substantially the condition in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as which it existed prior to such damage damage, except that Landlord shall not be required to rebuild, repair or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction replace any part of the Indebtedness then most remotely partitions, fixtures, additions and other improvements which may have been placed in, on or about the Premises by you except that Landlord may elect not to be paid in inverse chronological order, or to rebuild if such damage occurs during the cost of rebuilding or restoration last year of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding term of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in Lease exclusive of any of the Instruments or any Lease option which is unexercised at the time of each disbursement), after first deducting such damage (unless you exercise the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses option within thirty (30) days of the disbursing partydate of damage or destruction). If the Premises are untenantable in whole or in part following such damage, upon the disbursing party being provided with satisfactory evidence Rent payable hereunder during the period in which they are untenantable shall be reduced to such extent as may be fair and reasonable under all of the circumstances. If Landlord should fail to complete the repairs and rebuilding within the Restoration Period, you may, at your option, terminate this Lease by delivering written notice of termination to Landlord as your exclusive remedy, whereupon all rights and or obligations hereunder shall cease and terminate. Should construction be delayed because of changes, deletions, or additions in construction requested by you, strikes, lockouts, casualties, acts of God, war, material or labor shortages, governmental regulation or control or other causes beyond the reasonable control of Landlord, the Restoration Period shall be extended for the time Landlord is so delayed, but not to exceed ninety (90) days.
(c) Notwithstanding anything herein to the contrary and if the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificatesrestoration exceeds $300,000, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so if a Superior Mortgagee requires that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior insurance proceeds be applied to the final completion indebtedness secured by a mortgage encumbering the Building, then Landlord shall have the right to terminate this Lease by delivering written notice of termination to you within fifteen (15) days after such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of requirement is made by the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Superior Mortgagee, to pay for the cost of completion of whereupon all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans rights and specifications for the restoration, repair, replacement or rebuilding be submitted to obligations hereunder shall cease and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyterminate.
Appears in 1 contract
Damage or Destruction. Mortgagor will If (i) the Leased Premises shall be damaged or destroyed by fire or any other peril against which insurance is then customarily carried with respect to premises similar in construction, general location, use and occupancy to the Leased Premises, and (ii) unless this Lease be terminated as hereinafter provided, then (x) the Lessee shall immediately give Mortgagee prompt notice of such damage to or destruction of any improvements on to the Mortgaged Property or Lessor and Master Lessor and (y) the Lessor shall use reasonable efforts to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurancecause Master Lessor, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in Master Lessor's expense, to repair or rebuild the Notes, shall be added same so as to and become a part of restore the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds Leased Premises as nearly as may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely reasonable to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a their condition of at least equal value as immediately prior to such damage or destruction; provided, and such always, that the Master Lessor's obligation so to repair or rebuild shall in no event exceed the scope of the work required to be done by the Master Lessor in the original construction of the Leased Premises nor require it to expend more than the net proceeds of insurance shall be made available therefor amount recovered by the Master Lessor under the conditions and insurance policies in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease force at the time of each disbursement)such damage or destruction provided that the Leased Premises were then insured against loss or damage by fire and such other perils as were then customarily covered with respect to premises similar in construction, after first deducting general location, use and occupancy to the expenses Leased Premises, to the extent of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses at least eighty (80%) percent of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the insurable value of the Leased Premises if reasonably obtainable from responsible insurance companies licensed to do business in Maine. If the Leased Premises shall be damaged or destroyed by any cause to the extent of fifty (50%) percent or more of its then insurable value, then the Master Lessor may elect by written notice given to the Lessee from either Master Lessor or Lessor either to terminate this Lease or to repair or rebuild as above provided, in which latter event the Master Lessor's obligation shall in no event exceed the scope of the work performed from time required to time and at all times be done by the undisbursed balance of such proceeds remaining Master Lessor in the hands original construction of the disbursing party, together with funds deposited for Leased Premises. In the purpose or irrevocably committed for such purpose, event that the Leased Premises shall be sufficient damaged or destroyed by any peril against which insurance of the type described in Paragraph 33 is not carried on the reasonable judgment Leased Premises by the Master Lessor and the estimated cost of Mortgageerepairing or rebuilding the Leased Premises by an independent engineer retained by the Master Lessor shall be in excess of Two Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars, then the Master Lessor may elect by written notice given to the Lessee either to terminate this Lease or to repair or rebuild as above provided. No such termination shall be effective if the Lessee shall elect in writing, within ten (10) days after such event, to pay for so repair or rebuild the cost Leased Premises and to waive any abatement of completion of all rent provided herein. In no event shall the Master Lessor be required to so repair or rebuild any such restoration, repair, replacement damage or rebuilding. Mortgagee may require that plans and specifications for destruction which arises after the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement expiration of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account nineteenth (19th) year of the Indebtedness then most remotely term of the Master Lease from a peril which is insured against under policies of insurance of the type required to be paid in inverse chronological ordercarried by the Lessor hereunder. During any period that the Lessee cannot fully occupy the Leased Premises for its business purposes, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release just proportion of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest rent shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyabated.
Appears in 1 contract
Damage or Destruction. Mortgagor will Tenant shall give Mortgagee prompt Landlord immediate notice of any damage to the Premises. Subject to the provisions of Section 9 of this Lease, if the Premises or destruction the Building shall be damaged to such an extent that there is substantial interference for a period exceeding 180 consecutive days with the conduct by Tenant of its business at the Premises, Tenant, at any time prior to commencement of repair of the Building and following 10 days' notice to Landlord, may terminate this Lease effective 30 days after delivery of such notice to Landlord. Such termination shall not excuse the performance by Tenant of those covenants which under the terms hereof survive termination. Rent shall be abated in proportion to the degree of interference during the period that there is such substantial interference with the conduct of Tenant's business at the Premises. Abatement of rent and Tenant's right of termination pursuant to this provision shall be Tenant's sole remedy for failure of Landlord to keep in good order, condition and repair the foundations and exterior walls of the Building, the roof of the Building, utility systems outside the Building and the Common Areas. Tenant's termination rights under Section 9 of this Lease shall not apply if the damage to the Premises or the Building is the result of any improvements on the Mortgaged Property act or to personal property used in the operation omission of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor Tenant or the lessees under any lease of any portion of the Mortgaged Property Tenant's agents, employees, customers, invitees or contractors (“Lease” or “Leases”collectively, "Tenant Acts"). Any expenses incurred damage resulting from a Tenant Act shall be promptly repaired by Mortgagee in Tenant. Landlord, at its option, may at Tenant's expense repair any damage caused by Tenant Acts. Tenant shall continue to pay all Rent and other sums due hereunder and shall be liable to Landlord for all damages that Landlord may sustain resulting from a Tenant Act. Notwithstanding the collection foregoing: (a) Landlord shall have the right, at Landlord's sole option, to be exercised by giving notice thereof to Tenant on or before that date which is 60 days after the occurrence of insurance proceedsany damage to the Building due to fire or other casualty, together with interest thereon from to terminate this Lease as of the date of such expense at damage if Landlord shall determine, in Landlord's sole but reasonable judgment, that all or substantially all of the highest default rate Building shall have been damaged as a result of such fire or other casualty; and (b) Except if the holder of any Mortgage (as defined in Section 15.11 of this Lease) shall require that the proceeds of insurance be applied to the repayment of the indebtedness secured by the Mortgage rather than to the restoration of the Property, Landlord shall use all insurance proceeds received by Landlord as a result of the occurrence of a fire or other casualty with respect to the Building for the restoration of the Building in a timely and diligent manner. Nothing set forth in the Notes, preceding terms and conditions of Section 9 of this Lease shall be added construed to and become obligate Landlord to utilize any funds other than insurance proceeds received by Landlord as a part result of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon occurrence of a fire or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or other casualty with respect to the cost of rebuilding or Building in connection with any restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied Building undertaken by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyLandlord.
Appears in 1 contract
Samples: Lease Agreement (Carrollton Bancorp)
Damage or Destruction. Mortgagor will (a) If the Building should be damaged or destroyed by fire, tornado or other casualty, you shall give Mortgagee prompt written notice of damage thereof to Landlord.
(b) If the Building should be totally destroyed by fire, tornado or destruction of any improvements on other casualty, or if the Mortgaged Property Building should be so damaged thereby that rebuilding or to personal property used in the operation repairs of the Mortgaged Property Building including the Premises cannot in Landlord's reasonable estimation be completed within the Restoration Period, this Lease shall terminate and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any Rent shall be abated during the unexpired portion of the Mortgaged Property (“this Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from effective upon the date of the occurrence of such expense at damage.
(c) If the highest default rate set forth in the Notes, shall Building should be added to and become a part of the Indebtedness and shall be reimbursed damaged by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied any peril covered by Mortgagee, upon or in reduction of the Indebtedness then most remotely insurance to be paidprovided by Landlord under Section 12.01, without a prepayment fee, or but only to the cost of such extent that rebuilding or restoration of repairs can in Landlord's reasonable estimation be completed within the improvements on the Mortgaged Property. HoweverRestoration Period, if Mortgagee this Lease shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destructionnot terminate, and such net proceeds of insurance Landlord shall be made available therefor under at its sole cost and expense thereupon proceed with reasonable diligence to rebuild and repair the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require Building and the insurers do not deny liability as Premises (including the Interior Modifications) to substantially the insureds, such insurance proceeds, after deducting expenses incurred condition in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as which they existed prior to such damage damage, except that Landlord shall not be required to rebuild, repair or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction replace any part of the Indebtedness then most remotely partitions, fixtures, additions and other improvements which may have been placed in, on or about the Premises by you except that Landlord may elect not to be paid in inverse chronological order, or to rebuild if such damage occurs during the cost of rebuilding or restoration last year of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding term of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in Lease exclusive of any of the Instruments or any Lease option which is unexercised at the time of each disbursement)such damage. If the Premises are untenantable in whole or in part following such damage, after first deducting the expenses of disbursement including, without limitation, Rent payable hereunder during the period in which they are untenantable shall be reduced or eliminated to such extent as may be fair and reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses under all of the disbursing partycircumstances. If Landlord should fail to complete such repairs and rebuilding within the Restoration Period, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration you may, at your option, terminate this Lease by delivering written notice of termination to Landlord as your exclusive remedy, whereupon all rights and or obligations hereunder shall cease and terminate. Should construction be delayed because of changes, deletions, or additions in construction requested by you, strikes, lockouts, casualties, acts of God, war, material or labor shortages, governmental regulation or control or other causes beyond the option reasonable control of Landlord, the Restoration Period shall be extended for the time Landlord is so delayed but in no event shall the Restoration Period exceed 365 days.
(d) Notwithstanding anything herein to the contrary, if a Superior Mortgagee requires that the insurance proceeds be applied to the indebtedness secured by a mortgage encumbering the Building, then Landlord shall have the right to terminate this Lease by delivering written notice of termination to you within fifteen (15) days after such requirement is made by the Superior Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof whereupon all rights and obligations hereunder shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partycease and terminate.
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice 11.1 If the Building or the Premises, or any part thereof, is damaged by fire or other casualty (a "Casualty") before the Commencement Date or during the Lease Term, and this Lease is not terminated pursuant to sections 11.2 or 11.3 hereof, Landlord shall repair such damage and restore the Building to substantially the same condition in which the Building existed before the occurrence of damage a Casualty (provided that Landlord shall have no obligation to restore any above-Building standard improvements or destruction Alterations, unless the cost thereof is paid by Tenant in advance of such restoration, or any improvements on the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly Alterations made by Mortgagor or for Tenant following the lessees under any lease Commencement Date) and this Lease shall, subject to the provisions of this Article 11, remain in full force and effect. If such Casualty damages the Building or Premises and Tenant ceases to use any portion of the Mortgaged Property (“Lease” Premises as a result thereof, then during the period the Building or “Leases”). Any expenses incurred Premises is rendered untenantable by Mortgagee such damage Tenant shall be entitled to a reduction in Monthly Rent in the collection proportion that the area of the Premises rendered unusable by such damage bears to the total area of the Premises. Landlord shall not be obligated to repair any damage to, or to make any replacement of, any movable furniture, equipment, trade fixtures or personal property in the Premises or Alterations made by or for Tenant in the Premises following the Commencement Date. Tenant shall, at Tenant's sole cost and expense, repair and replace all such movable furniture, equipment, trade fixtures, personal property and any Alterations made by or for Tenant in the Premises following the Commencement Date. Such repair and replacement by Tenant shall be done in accordance with Article 8 hereof. Tenant hereby waives California Civil Code sections 1932(2) and 1933(4), or any successor statute, providing for termination of hiring upon destruction of the thing hired. Notwithstanding any contrary provision of this Article 11, the parties hereby agree as follows: (i) the closure of the Building, the common areas, or any part thereof to protect public health shall not constitute a Casualty for purposes of this Lease, (ii) Casualty covered by this Article 11 shall require that the physical condition or structural integrity of the Premises, the Building, or the common areas is degraded as a direct result of such occurrence, and (iii) a Casualty under this Article 11 shall not be deemed to occur merely because Tenant is unable to productively use the Premises in the event that the physical condition and structural integrity of the Premises is undamaged.
11.2 If the Building, or any part thereof, is damaged by Casualty before the Commencement Date or during the Lease Term and (a) such Casualty occurs during the last twelve (12) months of the Lease Term and the repair and restoration work to be performed by Landlord in accordance with section 11.1 hereof cannot, as reasonably estimated by Landlord, be completed within two (2) months after the occurrence of such Casualty, or (b) the insurance proceedsproceeds received by Landlord in respect of such damage are not adequate to pay the entire cost, together as reasonably estimated by Landlord, of the repair and restoration work to be performed by Landlord in accordance with interest thereon from section 11.1 hereof, or (c) the repair and restoration work to be performed by Landlord in accordance with section 11.1 hereof cannot, as reasonably estimated by Landlord, be completed within six (6) months after the occurrence of such Casualty, then, in any such event, Landlord or Tenant shall have the right, by giving written notice to the other within sixty (60) days after the occurrence of such Casualty, to terminate this Lease as of the date specified in such notice, which date shall be not less than thirty (30) days nor more than sixty (60) days after the date such notice is given.
11.3 A total destruction of the Building shall automatically terminate this Lease effective as of the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or total destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.
Appears in 1 contract
Samples: Lease (Talis Biomedical Corp)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to If the buildings or destruction of any other improvements located on the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any constituting a portion of the Mortgaged Property Leased Premises are damaged or destroyed by fire or other casualty, this Lease shall continue in full force and effect provided Landlord and its mortgagee(s) shall make such casualty insurance proceeds available for the repair and reconstruction of the Premises through an appropriate, as determined by Landlord, independent escrow of such proceeds and otherwise in accordance with Landlord's mortgagee. Landlord shall, as promptly as possible, and, subject to the approval of Landlord and its mortgagee(s) and in compliance with all applicable 15 2679199lvl2 laws, restore, repair or rebuild the Leased Premises to substantially the same condition as existed before the damage or destruction using materials of the same or better grade than that of the original construction, including any improvements or alterations required to be made by Law. Landlord shall for this purpose use all, or such part as may be necessary, of the insurance proceeds received from the insurance policies carried on the Leased Premises. If such insurance proceeds are not sufficient to pay such costs, Tenant may elect to pay such deficit. In the event that the Premises are so damaged as to make restoration or repair impractical as determined by Landlord, then Landlord may terminate this Lease as a permitted termination by written notice to Tenant within sixty (“Lease” or “Leases”). Any expenses incurred by Mortgagee in 60) days of such casualty (the collection of insurance proceeds, together with interest thereon "Termination Notice") and Tenant shall be released from its obligation to pay future Minimum Rent from and after the date of Tenant's receipt of such expense at notice. Should Landlord or its mortgagee(s) fail to make such insurance proceeds available for the highest default rate set forth in the Notesreconstruction or repair, shall be added to and become then Tenant may terminate this Lease as a part permitted termination effective as of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction date of the Indebtedness then most remotely to be paidcasualty, without a prepayment fee, or to the cost provided any notice is received by Landlord within twenty (20) days of rebuilding or restoration Tenant's receipt of Landlord's written notice in respect of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion unavailability of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented proceeds. If by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account reason of any such proceeds casualty described above: (i) the Leased Premises is rendered wholly untenantable as a result of a risk which is not covered by Landlord's or other funds held in the hands of Mortgagee or the disbursing party.Tenant's insurance policies;
Appears in 1 contract
Samples: Lease Agreement (Dixie Group Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice If any of the Improvements shall be destroyed --------------------- or damaged prior to the Closing, and if either the estimated cost of repair or replacement exceeds One Hundred Fifty Thousand Dollars ($150,000.00) or the damage to or destruction of any improvements on the Mortgaged Property or to personal property used could result in the operation termination of the Mortgaged Property and in case Lease, Purchaser may, by written notice given to Seller within twenty (20) days after receipt of loss covered by policies written notice from Seller of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, elect to terminate this Agreement, in which event the Xxxxxxx Money shall immediately be returned by Escrow Agent to Purchaser and such net proceeds the rights, duties, obligations, and liabilities of insurance all parties hereunder shall immediately terminate and be made available therefor under of no further force or effect. If Purchaser does not elect to terminate this Agreement pursuant to this Paragraph 20, or has no right to terminate this Agreement (because the conditions damage or destruction does not exceed $150,000.00 and could not result in the manner set forth below. So long as there exists no Event termination of Default (as defined in the Loan AgreementLease), and provided any loss the sale of the Property is consummated, Purchaser shall be entitled to receive all insurance proceeds paid or payable to Seller by reason of such destruction or damage cannot, in under the sole judgment of Mortgagee, result in insurance required to be maintained by the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as Tenant pursuant to the insureds, such Lease (less amounts of insurance proceeds, after deducting expenses theretofore received and applied by Seller to costs actually incurred in collection, for restoration). Seller shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement not settle or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such release any damage or destructiondestruction claims without obtaining Purchaser's prior written consent in each case. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of All said insurance proceeds after payment received by Seller by the date of costs of building and restoration mayClosing shall be paid by Seller to Purchaser at Closing. In addition, at the option of MortgageeClosing, be applied either on account of the Indebtedness then most remotely Seller shall pay over to be paid in inverse chronological orderPurchaser, without a prepayment feeand assign to Purchaser, or be paid to any person or persons otherwise entitled thereto. Application or release of all proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such rent loss insurance for the period of time commencing on the date of Closing. If the amount of said casualty or rent loss insurance proceeds or is not settled by the date of Closing, Seller shall execute at Closing all proofs of loss, assignments of claim, and other funds held similar instruments in the hands order that Purchaser receive all of Mortgagee or the disbursing partySeller's right, title, and interest in and under said insurance proceeds.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Fund Viii Lp)
Damage or Destruction. Mortgagor will give Mortgagee prompt If the Real Property is damaged by fire or other casualty prior to the Closing Date which would cost in excess of One Hundred Thousand Dollars to repair (as determined by the parties in good faith), Buyer may elect one of the following actions: (a) Buyer may terminate this Agreement by written notice of damage to Seller given on or destruction of any improvements on before the Mortgaged Property or to personal property used Closing Date (in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date event of such expense at termination, this Agreement will be of no further effect, the highest default rate set forth in the Notes, Deposit shall be added returned to Buyer, and become a part of the Indebtedness and shall be reimbursed by Mortgagor neither Party will thereafter have any further obligation under this Agreement, except for any obligations which expressly survive termination); or (b) if Buyer does not elect to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuiltterminate this Agreement, then the repairClosing will take place as provided in this Agreement without abatement of or reduction in the Purchase Price, restoration, replacement or rebuilding of the improvements and Seller will assign and transfer to Buyer on the Mortgaged Property shall be Closing Date all of Seller’s right, title and interest in and to a condition all insurance proceeds paid or payable to Seller on account of at least equal value such fire or other casualty, less such portion thereof as may have been applied to restoration prior to the Closing Date (with Buyer’s approval), if any, and shall give a credit to Buyer against the Purchase Price in the amount of any applicable policy deductible. If the Real Property or any part thereof is damaged by fire or other casualty prior to the Closing Date which would cost One Hundred Thousand Dollars ($100,00.00) or less to repair (as determined by the parties in good faith), Buyer will not have the right to terminate its obligations under this Agreement by reason of such damage or destructionto any reduction in the Purchase Price, and such net proceeds of insurance shall be made available therefor under the conditions and Closing will take place as provided in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions but Seller will assign and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements transfer to Buyer on the Mortgaged Property shall be disbursed from time Closing Date all of Seller’s right, title and interest in and to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely paid or payable to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed Seller on account of any such proceeds fire or other funds held casualty, less such portion as may have been applied to restoration of the Real Property prior to the Closing Date, if any, and shall give a credit to Buyer against the Purchase Price in the hands amount of Mortgagee any applicable policy deductible. Buyer does not bear the risk of loss to the Real Property prior to Closing. Prior to the Closing Date, Seller shall not settle, adjust, or consent or otherwise agree to any insurance settlement, resolution, or dispute without Buyer’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned). Seller shall promptly provide copies of all written information and communication sent and received by Seller pertaining to any insurance claim within the disbursing partyscope of this Section 13.1, and shall afford Buyer the opportunity to participate in all communications and meetings regarding such casualty matter.
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice (a) If the Premises is damaged by any cause required to be covered by insurance pursuant to Article 18, Tenant, at its sole expense, shall forthwith repair, restore, and rebuild the same with all reasonable dispatch and diligence, so far as practicable and lawful, to a complete unit of like quality, character, and condition and the same layout and parking to rentable square foot ratio as that which existed immediately prior to the damage. Tenant shall be entitled to the use of insurance proceeds available from insurance covering such damage to or destruction the extent of any improvements on the Mortgaged Property or actual cost of such repair. Said repair, restoration and rebuilding shall be constructed in accordance with plans and specifications approved in writing by Landlord, prepared by a licensed architect selected and employed by Tenant and approved in writing by Landlord, and performed by a licensed general contractor approved in writing by Landlord. None of the approvals to personal property used be obtained from Landlord in the operation previous sentence shall be unreasonably withheld. During such repair, restoration or rebuilding Landlord shall at all times have access to the Premises for the purpose of making inspections of the Mortgaged Property and work in case of loss covered by policies of insuranceprogress.
(b) If Tenant does not either:
(i) Obtain a building permit for any repairs, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor rebuilding or the lessees under any lease of any portion of the Mortgaged Property restoration required hereunder within three (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon 3) months from the date of such expense damage or destruction, or
(ii) Complete such repairs, rebuilding or restoration and comply with the conditions in Article XI(B) below for the resumption of rent and other payments by Tenant within six (6) months after the date of such damage or destruction, then in either event Landlord may at any time thereafter cancel and terminate this Lease by sending ninety (90) days written notice thereof to Tenant, except however said notice of cancellation shall not be effective if Tenant within said ninety (90) day period shall obtain such permit or complete and comply as aforesaid, as the highest default rate set forth case may be. 7
(a) In the event that the Premises is damaged to the extent that it is not reasonably suitable for the normal conduct of Tenant's business materially as carried on prior to said damage, and despite such damage, Tenant elects to continue occupancy of the Premises, then from the date of such damage until completion of repair, restoration, and rebuilding, there shall be an equitable adjustment in Rent, and any imposition and charges, including but not limited to real estate taxes, insurance and maintenance expenses, taking into account the Notesinterference with Tenant's normal conduct of business and loss of profit resulting therefrom. If Tenant elects to discontinue occupancy because the the Premises are not reasonably suitable for the normal conduct of Tenant's business materially as carried on prior to said damage, then the Rent and any impositions and charges, including but not limited to real estate taxes, insurance and maintenance expenses, shall completely abate during the period of repair. Notwithstanding anything hereix xx the contrary, Tenant shall only be added entitled to and become a part an abatement of the Indebtedness Rent to the extent that Landlord receives payment of the proceeds of any rent insurance in lieu of Rent.
(b) Tenant shall not be required to accept delivery of possession of the Premises and to commence payment of Rent and other charges payable by Tenant to Landlord hereunder until the earlier of (i) the date on which Tenant recommences to conduct business on the entire Premises, or (ii) sixty (60) days after the date on which the last of all the following events have occurred:
(i) The architect in charge of the construction on the Premises certifies in writing to Tenant that said construction has been completed in strict accordance with the approved plans and specifications;
(ii) A certificate of occupancy or an equivalent use permit, and all other requisite permits necessary for Tenant to conduct business on the Premises and for the public to have access to the Premises are issued by the appropriate legal authorities issuing same (Landlord shall deliver to Tenant certified or photostatic copies of same); and
(iii) If the location of the foundations or exterior walls has been changed, Landlord delivers to Tenant an as-built survey of the restored Premises.
C. If more than one-third (1/3) of the improvements upon the Premises are destroyed and such destruction occurs within the last one (1) year of the initial Lease Term to such an extent that Tenant shall be reimbursed by Mortgagor unable to Mortgagee immediately upon demand. Such net proceeds conduct business on the Premises, Tenant at its option may be applied by Mortgagee, upon or in reduction terminate this Lease effective as of the Indebtedness then most remotely to be paid, without a prepayment fee, or date of such casualty by giving to the cost Landlord within thirty (30) days after the occurrence of such casualty, written notice of such termination. If said notice be given within said thirty (30) day period by Tenant, this Lease shall terminate and Tenant shall assign to Landlord all of Tenant's claim or interest in and to insurance proceeds otherwise allowable for the repair and restoration of said improvements.
(a) If Tenant fails or is unable to obtain a building permit for repairs, rebuilding or restoration of the improvements on Premises within three (3) months from the Mortgaged Property. Howeverdate damage occurs, if Mortgagee Landlord shall require have the right to apply for that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property permit and Tenant shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, cooperate with Landlord in its sole discretion, upon and in reduction of application.
(b) If Tenant stops the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property Premises or personal property. Howeverif Landlord obtains a building permit pursuant to Article XI(D)(a) above, if Mortgagee shall require that Landlord may take over the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding restoration of the improvements Premises. If Landlord elects to take over the restoration of the Premises, Tenant shall:
(i) Turn over all insurance proceeds in its possession to Landlord and assign to Landlord its right to all uncollected insurance proceeds and all insurance proceeds held by or for the benefit of the holder of the beneficiary's interest under a deed of trust encumbering the Premises; and
(ii) (Assign to Landlord its rights under contracts with the architect and general contractor with respect to the work done and to be done on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyPremises.
Appears in 1 contract
Samples: Lease Agreement (Wickes Inc)
Damage or Destruction. Mortgagor will A. In the event the Building is damaged by fire or other perils then Sublessee shall give Mortgagee prompt written notice to Lessor, First Sublessor and Sublessor of damage such event. Thereafter Sublessee shall have the same rights Sublessor may have under the Master Lease to or destruction terminate this Sublease. Such right to terminate shall be exercised by giving written notice to Sublessor not less than ten (10) days prior to such date that Sublessor must notify Lessor of Sublessor's intention to terminate the Master Lease.
B. Upon any improvements on termination of this Sublease under this Article, the Mortgaged Property or parties shall be released thereby without further obligation to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon other from the date possession of the Premises is surrendered to Sublessor except for the items which have theretofore accrued and are then unpaid.
C. In the event of repair, reconstruction and restoration of the Building by Lessor as provided in the Master Lease, Rent for the Premises shall be abated during the period of repair, reconstruction and restoration if and as provided in the Master Lease. Except to the extent of such expense at the highest default rate set forth abatement, this Sublease shall remain in full force and effect. Sublessee shall not be entitled to any compensation or damages for loss in the Notes, shall be added to and become a use of the whole or any part of the Indebtedness and shall be reimbursed Premises and/or any inconvenience or annoyance occasioned by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restorationdamage, repair, replacement reconstruction or rebuilding restoration.
D. It is hereby understood that if Sublessor, First Sublessor or Lessor is obligated to repair or restore as herein provided, Sublessor or Lessor is obligated to make repairs or restoration only of those portions of the improvements on Building and the Mortgaged Property Premises which were originally provided at Sublessor or Lessor's expense, and the repair and restoration of items not provided at Sublessor or Lessor's expense shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any obligation of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partySublessee.
Appears in 1 contract
Samples: Sublease (Jb Oxford Holdings Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to or destruction (a) Promptly, and in any case within five (5) Business Days after the occurrence thereof, Borrowers shall notify Agent of any improvements on the Mortgaged Property fire or other Casualty with respect to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of any of the Mortgaged Borrowing Base Properties. Such notice also shall generally describe the nature and extent of such Casualty and set forth such party’s best estimate of the cost of Restoration.
(b) Agent shall be entitled to receive all insurance proceeds payable with respect to the applicable Borrowing Base Property (“Lease” or “Leases”)on account of a Casualty. Any expenses incurred by Mortgagee in the collection Borrowers irrevocably assign, transfer and sets over to Agent all rights of each Borrower to any such insurance proceeds, together with interest thereon from award or payment. Borrowers hereby irrevocably authorize and empower Agent, in the date name of such expense at Borrower or otherwise, to file for and prosecute in its own name what would otherwise be such Borrower’s claim for any such insurance proceeds. Notwithstanding the highest default rate set forth in the Notesforegoing, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So so long as there exists no Event of Default shall have occurred and shall then be continuing and provided such Borrower files, all claims and diligently prosecutes same, such Borrower shall have the right to file, adjust, settle and prosecute any claim for and receive such insurance proceeds; provided, however, that such Borrower shall not agree to any adjustment or settlement of any such claim payable with respect to a Casualty the insurance proceeds with respect to which are greater than $1,000,000 (as defined the “Casualty Proceeds Disbursement Threshold”) without Agent’s prior consent which shall not be unreasonably withheld. Each Borrower shall promptly after demand pay to Agent all reasonable costs and expenses (including the fee of any insurance consultant or adjuster and reasonable attorneys’ fees and disbursements) incurred by Agent in connection with a Casualty and seeking and obtaining any insurance proceeds, award or payment with respect thereto. Net Proceeds held by Agent, together with any interest earned thereon, shall constitute additional security for the Loan Agreementpayment of the Obligations (a security interest therein being granted hereby), until disbursed in accordance with this Section 5.20 or Section 5.22 hereof, as the case may be. Notwithstanding the foregoing, or anything else herein, to the contrary, all proceeds of business interruption/rent loss insurance may be collected by and provided any loss or damage cannotshall be paid and applied in accordance with Section 5.20(g) hereof.
(c) Each Borrower shall, at its sole cost and expense, promptly commence and diligently and continuously perform to completion the Restoration in a good and workmanlike manner and in compliance with all Legal Requirements and the sole judgment of Mortgagee, result in the termination, cancellation or modification requirements of the Leases Permitted Encumbrances, whether or not such Borrower shall have satisfied the requirements of Section 5.20(d) hereof in order to cause the Net Proceeds to be made available for such Restoration and whether or not such insurance proceeds on account of the Casualty shall be sufficient for such purpose.
(if any)d) In the case of any Casualty with respect to which the insurance proceeds payable are less than the Casualty Proceeds Disbursement Threshold, so long as no Default or Event of Default shall have occurred and if the Leases so require and the insurers do not deny liability as to the insuredsbe continuing, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied retained by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or applicable Borrower. Subject to the cost rights of rebuilding Agent contained herein during a Default or restoration an Event of Default, such insurance proceeds shall be used by Borrowers solely for purposes of performing and completing the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt Restoration in accordance with this Agreement. In the case of any Casualty with respect to which the insurance proceeds payable are equal to or greater than the Casualty Proceeds Disbursement Threshold, such net proceeds of insurance the Net Proceeds shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restorationheld by Agent, repairif Agent so elects, replacement or rebuilding as a part of the improvements on the Mortgaged Property Collateral and shall be applied or dealt with by Agent as follows:
(i) The Net Proceeds shall be disbursed from time in accordance with Agent’s standard construction lending practices, terms and conditions if the following conditions are satisfied (each a “Release Condition” and collectively, the “Release Conditions”) within one hundred and eighty (180) days after the occurrence of such Casualty:
(A) no Default or Event of Default shall have occurred and be continuing;
(B) the applicable Borrower shall have delivered to time Agent within sixty (provided no default exists in 60) days after the or in this Agreement or in any occurrence of the Instruments or any Lease at the time of each disbursement)Casualty, after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion a notice of such work and Borrower’s desire to undertake the Restoration;
(C) the applicable Borrower shall have demonstrated to the reasonable satisfaction of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so Agent that the disbursing party Restoration can verify that the amounts disbursed from time to time are represented by be completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made at least six (6) months prior to the final then-current Maturity Date, or such earlier time as may be required by applicable Legal Requirements;
(D) the applicable Borrower shall have demonstrated to the reasonable satisfaction of Agent that sufficient funds are available to such Borrower through rent and/or business interruption insurance maintained pursuant to Section 5.19 hereof, cash, and/or a letter of credit or other similar cash-equivalent security reasonably satisfactory to Agent as to form, content and issuer, and which shall be for the benefit of Agent, to pay all debt service with respect to the Loan and all operating expenses with respect to the applicable Borrowing Base Property during the period reasonably estimated by such Borrower as necessary for the completion of the Restoration;
(E) the applicable Borrower shall have provided Agent with a guaranty of completion satisfactory to Agent in form and content and as to guarantor which, among other things, guarantees the timely and lien-free completion of the Restoration;
(F) to the extent, in Agent’s reasonable judgment, the Net Proceeds are insufficient to pay the costs of the Restoration, the applicable Borrower shall have provided Agent with a letter of credit, cash deposit or similar equivalent security in the amount of such restorationdeficiency in form, repaircontent and issuer reasonably satisfactory to Agent;
(G) Agent shall have obtained Appraisals at Borrowers’ expense, replacement or rebuilding certifying that upon completion of the repairs and restoration of the applicable Borrowing Base Property the outstanding aggregate principal balance of the Loans shall not exceed ninety fifty-five percent (9055%) of the value aggregate Appraised Values of each Borrowing Base Property;
(H) Agent shall have received architectural plans and specifications for all restoration and repairs and an estimate of the work performed from time to time costs and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion expenses of all such restorationrestoration and repairs, repairall of which shall be in form reasonably acceptable to Agent; and Prior to any disbursement of Net Proceeds by Agent, replacement Borrowers shall be entitled to pursuant to this Section 5.20, the following information and documentation shall have been obtained by the applicable Borrower, at such Borrower’s expense, and submitted to Agent, which information and documentation shall be in form and substance reasonably satisfactory to Agent:
(1) A request for disbursement signed by the applicable Borrower, accompanied by billing statements, vouchers or rebuilding. Mortgagee may require invoices, which request for disbursement shall expressly warrant that the work with respect to which the advance is requested has been performed substantially in accordance with the approved plans and specifications for the restorationrestoration or repair;
(2) Proof that all invoices for labor and materials previously submitted by the applicable Borrower and approved and reimbursed by Agent have been paid, except for those the subject of the current request for disbursement and except for customary retainage;
(3) Lien waivers (full or partial, as applicable) for all payees under previous requests for disbursements;
(4) A report from the applicable Borrower’s architect or, if Agent shall elect, Agent’s consultant, which shall specify the percentage of completion of restoration or repair, replacement shall provide detailed comments on specific work performed since the date of the last such report, and, if required by Agent, an estimate of the cost to complete the restoration and repair after taking into account the work then completed;
(5) At the reasonable request of Agent, a Title Continuation, or rebuilding if the applicable Borrowing Base Property is located in a jurisdiction in which a full title premium shall be submitted required in order to obtain a Title Continuation, then Borrowers shall provide Agent with an updated title report or abstractor’s certification indicating that, since the immediately preceding Title Continuation (or title update or abstractor’s certification, as applicable) relating to such Borrowing Base Property, as applicable, delivered to Agent pursuant to this Agreement, there has been no change in the state of title to such Borrowing Base Property and no Liens or survey exceptions not theretofore approved by Mortgagee prior Agent as provided herein, which title report shall be in form and substance reasonably acceptable to Agent;
(6) Copies of the material agreements pursuant to which the restoration or repair shall be done, which shall be in form and substance reasonably satisfactory to Agent, and which also shall be reasonably satisfactory to Agent as to the commencement party performing the construction obligations thereunder;
(7) An assignment to Agent of all material construction and design-professional contracts (which may be pursuant to the applicable Mortgage and the applicable Assignment of Agreements), together with the written consent to such assignments by all parties to such contracts (which may be included in any such contract); and
(8) Such other information and documentation as Agent may reasonably request regarding the Improvements and the restoration or repairs and the cost thereof; and
(ii) Notwithstanding Section 5.20(d)(i) hereof, if Agent does not elect to hold the Net Proceeds, the applicable Borrower shall not disburse any Net Proceeds other than in accordance with the conditions of this Section 5.20(d) and Sections 5.20(e) and 5.20(f) hereof.
(e) If one or more of the workRelease Conditions are not satisfied within the time period set forth in Section 5.20(d) hereof, all Net Proceeds shall be applied in accordance with Section 5.22 hereof, provided, that, if each of the Release Conditions shall have been satisfied except the Release Condition set forth in Section 5.20(d)(i)(A) hereof as a result of the occurrence of a Default (as opposed to the occurrence of an Event of Default), Agent shall not so apply the Net Proceeds until such time, if any, as an Event of Default shall have occurred.
(f) All reasonable costs and expenses incurred by Agent in connection with making the Net Proceeds available for the Restoration (including reasonable attorneys’ fees and disbursements and reasonable fees and actual out-of-pocket expenses of Agent’s construction consultants and inspectors) shall be paid by the applicable Borrower. Any surplus which may remain out Net Proceeds remaining after the Restoration and the payment in full of said all costs incurred in connection with the Restoration, will be distributed by Agent to the applicable Borrower so long as no Default or Event of Default then exists.
(g) Business interruption/rent loss insurance proceeds after of each Borrower shall be deposited into either (i) an account or subaccount of Agent or (ii) an account at a bank or other financial institution reasonably approved by Agent. Provided no Default or Event of Default shall have occurred and be continuing, such proceeds shall be applied to the payment of costs of building Interest, principal due and restoration maypayable, at the option of Mortgageeif any, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under Section 2.09 hereof and other sums that become due and payable under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant Financing Documents relating to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or Loans made with respect to the disbursing party.applicable Borrowing Base Property, as and when due and then to operating expenses for
Appears in 1 contract
Samples: Credit Agreement (Hines Real Estate Investment Trust Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to In the event that the Property should be totally destroyed by fire, tornado or destruction of any improvements on the Mortgaged Property other casualty or to personal property used in the operation of event the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if should be so damaged that rebuilding or repairs cannot promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property be completed within ninety (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from 90) days after the date of such expense damage, either Landlord or Tenant may, at its option, by written notice to the highest default rate set forth other, given not more than thirty (30) days after the date of such fire or other casualty, terminate this Lease; in such event, the Notes, rent shall be added abated during the unexpired portion hereof effective with the date of such fire or other casualty. In the event the Property should be damaged by fire, tornado or other casualty covered by Landlord's insurance, but only to and become a such extent that rebuilding or repairs can be completed within ninety (90) days after the date of such damage, or if the damage should be more serious, but neither Landlord or Tenant elects to terminate this Lease, then Landlord shall, within forty-five (45) days after the date of such damage, commence to rebuild or repair the Property to substantially the same condition in which it was immediately prior to the happening of the casualty, except that Landlord shall not be required to rebuild, repair or replace any part of the Indebtedness furniture, equipment, fixtures and other improvements which may have been placed by Tenant or others within the Property, and in any event Landlord's obligation to repair shall be reimbursed by Mortgagor limited to Mortgagee immediately upon demandthe extent proceeds of insurance are available for such purpose. Such net proceeds may be applied by MortgageeLandlord shall, upon unless such damage is the result of any negligence or in reduction willful misconduct of Tenant or Tenant's employees or invitees, allow Tenant a fair diminution of rent during the time that the Property is unfit for occupancy. Notwithstanding any of the Indebtedness then most remotely to be paidforegoing, without in the event any mortgagee, under a prepayment feedeed of trust, security agreement or to the cost of rebuilding or restoration of the improvements mortgage on the Mortgaged Property. However, if Mortgagee shall should require that the improvements on insurance proceeds be used to retire the Mortgaged Property mortgage debt, Landlord shall have no obligation to rebuild and this Lease shall terminate upon notice to Tenant. Any insurance which may be repaired carried by Landlord or rebuilt, then Tenant against loss or damage to the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in for the sole judgment benefit of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), Landlord and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partycontrol.
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Damage or Destruction. Mortgagor will give Mortgagee prompt notice If the Premises are damaged or destroyed without the gross negligence or willful misconduct of Tenant, its agents, employees, by fire or other casualty:
(a) if such damage to or destruction of any improvements on the Mortgaged Property or to personal property used results in the operation of the Mortgaged Property and in case of loss covered by policies of insurancePremises being unusable for Tenant's purposes, Mortgagee is hereby authorized Tenant may elect to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property terminate this Lease within ten (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added 10) days upon written notice to and become a part of the Indebtedness and shall be reimbursed by Mortgagor Lessor; and
(b) Lessor may either elect to Mortgagee immediately terminate this Lease within ten (10) days upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely written notice to be paid, without a prepayment feeTenant, or elect to the cost of rebuilding restore such damage or restoration of the improvements on the Mortgaged Propertydestruction. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be If Lessor elects to a condition of at least equal value as prior to restore such damage or destruction, and such net proceeds of insurance Tenant shall be made available therefor under entitled to a proportionate reduction of Rent based upon the conditions and extent to which the making of such repairs interferes with the business carried on by Tenant in the manner set forth belowPremises. So long If Tenant or Lessor give such termination notice as there exists no Event aforementioned, this Lease shall expire and all interest of Default (as defined the Tenant in the Loan Agreement)Premises shall terminate and Tenant shall vacate the Premises on the date specified in such notice and the Rent (reduced by any proportionate reduction based upon the extent, if any, to which the damage interfered with the business carried on by Tenant in the Premises) shall be paid up to the date of such termination. Lessor's rights and provided remedies against Tenant under this Lease prior to such termination shall survive such termination. Lessor shall refund to Tenant any loss Rent theretofore paid for any period of time after such termination date. If Lessor repairs or restores the damage, Lessor shall not be required under any circumstances to repair any injury, damage or destruction by fire or other cause to, or to make any repairs or replacements of, any paneling, decorations, railings, floor coverings, office fixtures, furnishings and equipment or any other property installed in the Premises by Tenant. All destruction or damage cannot, in to the sole judgment of Mortgagee, result in the termination, cancellation or modification Premises and other portions of the Leases (if any)Building, and if the Leases so require and the insurers do not deny liability as to the insuredscaused by Tenant, such insurance proceeds, after deducting expenses incurred in collectionits agent or employees, shall be made restored or repaired by Lessor at the expense of Tenant; provided such restoration or repair by Lessor shall not limit any rights or remedies otherwise available under to Lessor as a result of the conditions and occurrence of the event resulting in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. OtherwiseTenant's payment obligation hereunder shall be regarded as Rent. No compensation, such net proceeds may claim or diminution of Rent will be applied allowed to Tenant or paid by MortgageeLessor by reason of inconvenience, in its sole discretion, upon and in reduction annoyance or injury to business arising from the necessity of repairing or restoring the Premises or any portion of the Indebtedness then most remotely to be paid in inverse chronological orderBuilding, or except to the cost extent abatement of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available Rent is provided for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyabove.
Appears in 1 contract
Damage or Destruction. After the happening of any casualty to --------------------- the Secured Property or any part thereof, Mortgagor will shall give prompt written notice thereof to Mortgagee prompt notice or its authorized representative and the following shall apply:
(1) In the event of any damage to or destruction of all or any improvements on part of the Mortgaged Property Secured Property, all proceeds of insurance shall be payable to Mortgagee, and Mortgagor hereby authorizes and directs any affected insurance company to make payment of such proceeds directly to Mortgagee. Insurance proceeds held by Mortgagee may be commingled with other funds in Mortgagee's or its authorized representative's possession, shall constitute additional security for the Obligations and Mortgagor shall not be entitled to personal property used the payment of interest thereon; provided, however, that in the operation event such insurance proceeds exceed $100,000 and such funds will be used for restoration or repair as provided below, such funds shall constitute additional security for the Obligations, but at Mortgagor's written request, such proceeds shall be deposited into an interest-bearing account at a bank or other financial institution satisfactory to Mortgagee, and held in accordance with a written escrow agreement satisfactory to Mortgagee and its legal counsel. Interest on such escrowed funds shall be added to, become a part of, and be disbursed as part of the Mortgaged Property such insurance proceeds. Until said escrow agreement is executed and delivered, such monthly deposits shall not be held in case an interest-bearing account and shall be held by Mortgagee as provided above. Any and all escrow fees and other costs associated with establishing such third-party escrow shall be borne by Mortgagor. Mortgagee by itself or through its authorized representative is hereby authorized and empowered by Mortgagor to participate in any settlement, adjustment or compromise of loss covered by any claims for loss, damage or destruction under any policy or policies of insurance. Mortgagor may not settle, Mortgagee adjust or compromise any claim without Mortgagee's consent, not to be unreasonably withheld; provided, however, that Mortgagor may, without Mortgagee's consent, settle, adjust or compromise any claim if the resulting settlement, adjustment or compromise is hereby authorized in an amount sufficient to make proof of loss if not promptly made by Mortgagor or satisfy the lessees under any lease Obligations in full, and such Obligations are actually paid in full.
(2) In the event of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, subject to Subsection 1.03G, Mortgagee shall have the option in its sole and such net proceeds absolute ---------------- discretion and without regard to the adequacy of its security hereunder, of applying all or part of the insurance shall be made available therefor under proceeds
(a) to the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement)Obligations, and provided any loss whether or damage cannotnot then due, in the sole judgment inverse order of Mortgageematurity, result in or (b) to the termination, cancellation repair or modification restoration of the Leases Secured Property, or (if any)c) to cure any then current default under any of the Loan Documents, or (d) to reimburse the Mortgagee and if its authorized representative for its reasonable costs and expenses in connection with the Leases so require and the insurers do not deny liability as to the insureds, recovery of such insurance proceeds, after deducting expenses incurred in collection, or (e) any combination of the foregoing.
(3) Nothing herein contained shall be made available under deemed to excuse Mortgagor from repairing or maintaining the conditions and Secured Property as provided in the manner specified in the following paragraph, for the repair, restoration, replacement Section 1.05 ------------ hereof or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such restoring all damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or destruction to the cost Secured Property, regardless of rebuilding whether there are insurance proceeds available or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of whether such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be are sufficient in amount, and the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement application or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved release by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said any insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any Event of Default (as hereinafter defined) or notice of default hereunder under this Mortgage or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partynotice.
Appears in 1 contract
Samples: Mortgage, Assignment of Leases and Rents and Security Agreement (Overseas Partners LTD)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of Section 17.1. the Premises or the Building are totally or partially damaged or destroyed thereby rendering the Premises totally or partially inaccessible or unusable, then, except as set forth herein,(a) Landlord shall diligently repair and restore the Base Building Work to substantially the same condition as prior to such damage to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation and (b) following Substantial Completion of the Mortgaged Property Base Building Work by Landlord, Tenant shall diligently repair and restore the Premises to substantially the same condition it was in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, which repair and such net proceeds of insurance restoration work shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt performed in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding all of the improvements on the Mortgaged Property shall be disbursed from time to time applicable provisions of this Lease (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, Article IX) except that Landlord shall have no obligation to pay for any costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence in excess of the cost to restore the Base Building Work, it being agreed that the cost to restore the remainder of completion the improvements shall be paid by Tenant. Prior to commencement of such restoration by Tenant, Tenant shall provide Landlord with evidence satisfactory to Landlord of Tenant’s financial ability to complete such restoration. Notwithstanding the foregoing, in the event of any of the following circumstances, Landlord may elect either to terminate this Lease or to perform Landlord’s restoration work and shall provide Tenant with written notice of Landlord’s election (the “Casualty Notice”), which shall contain the estimated completion date with respect to the Base Building Work (the “Landlord Estimated Completion Date”) and the additional amount of time after the actual completion date of the diligent Base Building Work that is expected to be necessary to complete the remainder of the improvements (the “Tenant Estimated Completion Date” and timely prosecution thereof the total time expected to complete the Base Building Work and the remainder of improvements (the “Estimated Completion Date”), within one hundred twenty (120) days of the damage or destruction, in the following circumstances:
(a) If in Landlord’s reasonable judgment the Estimated Completion Date is more than one (1) year after the occurrence of such damage or destruction (taking into account the time needed for effecting a satisfactory settlement with architect’s certificatesany insurance company involved, waivers removal of liendebris, contractors’ preparation of plans and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear issuance of all mechanics’ lien claimsrequired governmental permits).
(b) If the insurance proceeds plus deductibles from insurance that Landlord is required to carry under this Lease or any insurance Landlord actually carries plus Two Million Dollars ($2,000,000) (the “Landlord Agreed Shortfall Contribution”) are insufficient to pay the full cost of Landlord’s repair and restoration of the Base Building Work (the “Landlord Restoration Work”); provided, however, that Landlord may not terminate this Lease pursuant to this Paragraph 17.1(b), if (i) Tenant agrees, within fifteen (15) days after its receipt of Landlord’s Casualty Notice, to fund the necessary amount in excess of the insurance proceeds plus the Landlord Agreed Shortfall Contribution, and (ii) within thirty (30) days thereafter, Tenant shall promptly deposit the excess with a third party escrow agent reasonably acceptable to Landlord and Tenant, in which event Landlord shall proceed with Landlord’s Restoration Work. No Landlord’s withdrawals from the trust account shall be proportionate and concurrent to Landlord’s schedule of payments to its contractors and paid in payment made prior of such contractor’s bills.
(c) If the holder of any Mortgage fails or refuses to make such insurance proceeds available for such repair and restoration pursuant to such holder’s exercise of legal rights.
(d) If, because of applicable Laws, Landlord’s Restoration Work cannot be completed except (i) in a substantially different structural form than existed before the Casualty for which insurance proceeds are not sufficient or (ii) in a size that results in materially less rentable square footage of the Building.
(e) If the damage to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety Building exceeds thirty-five percent (9035%) of the value rentable area of Building. Landlord shall provide Tenant with the Casualty Notice containing the Estimated Completion Date and Landlord’s election to either repair or to terminate this Lease within one hundred twenty (120) days after the occurrence of such damage or destruction.
Section 17.2. If this Lease is terminated pursuant to this Article, then Rent shall be apportioned (based on the portion of the work performed from time Premises which is usable or used after such damage or destruction) and paid to time the earlier of the date of termination or the date Tenant completely vacates and at all times abandons the undisbursed balance Premises on account of such damage and Landlord shall be entitled to any insurance proceeds remaining received by Tenant that are attributable to Tenant Improvements and other improvements insured or required to be insured by Tenant that would remain in the hands Premises at the end of the disbursing partyLease Term. If this Lease is not terminated as a result of such damage or destruction, together with funds deposited then until such repair and restoration of the Base Building Work are Substantially Complete and for such additional time until the earlier of (a) completion of Tenant’s restoration of the improvements (the “Tenant Restoration Work”), (b) the date that completion of the Tenant Restoration Work would have occurred but for delays that are not the result of Force Majeure or Landlord Delay (but no earlier than the Tenant Estimated Completion Date) and (c) Tenant’s occupancy of the affected Premises or any part thereof for the purpose or irrevocably committed for such purposeconduct of its business, Rent shall be sufficient in equitably abated based upon the reasonable judgment extent that Tenant’s use of Mortgageethe Premises is diminished while such repair and restoration are being made; provided, however, that (x) if such damage or destruction was caused by the act or omission of Tenant or any Tenant’s Agent, then after the period insured by Landlord’s rental interruption insurance, Tenant shall not be entitled to any such Rent reduction, and (y) if Tenant fails to pay for over to Landlord insurance proceeds promptly following receipt from Tenant’s insurance, any such rent abatement shall end on the date when Landlord would have been able to substantially complete repair and restoration of the Premises had Tenant timely paid Landlord such insurance proceeds. After receipt of all insurance proceeds, Landlord shall proceed with and bear the expenses of such Landlord Restoration Work; provided, however, that (a) if such damage or destruction was caused by the act or omission of Tenant or any Tenant’s Agent, then Tenant shall pay Landlord’s actual deductible and the amount by which such expenses exceed the insurance proceeds, if any, actually received by Landlord on account of such damage or destruction or the amount of insurance proceeds which Landlord would have received if Landlord carried the insurance required to be carried by Landlord under this Lease, (b) Tenant shall pay the amount by which the cost of completion restoring any item which Landlord is required to restore and Tenant is required to insure exceeds the insurance proceeds received with respect thereto, in accordance with a reasonable progress schedule, and (c) Landlord shall not be required to repair or restore any tenant improvements installed in the Premises (except to the extent Landlord receives proceeds therefor from Tenant’s insurance), any Alterations or any other contents of all the Premises (including Tenant’s trade fixtures, decorations, furnishings, equipment or personal property).
Section 17.3. If, within one hundred twenty (120) days after the occurrence of the damage or destruction described in Section 17.1, Landlord determines in its sole but reasonable judgment that the Estimated Completion Date is more than one (1) year after the date of such restorationdamage or destruction, and provided Landlord does not elect to terminate this Lease pursuant to this Article, then Landlord shall promptly notify Tenant of such determination in the Casualty Notice. For a period of thirty (30) days after receipt of such Casualty Notice, Tenant shall have the right to terminate this Lease by providing written notice to Landlord (which date of such termination shall not be more than thirty (30) days after the date of Tenant’s notice to Landlord). If the damage occurs during the last twelve (12) months of the Term (as extended by any extension option which has been exercised by Tenant) and will reasonably require in excess of thirty (30) days to repair, replacement for a period of thirty (30) days following Tenant’s receipt of the Casualty Notice Tenant shall have the right to terminate this Lease by providing written notice to Landlord (which date of such termination shall be not more than thirty (30) days after the date of Tenant’s notice to Landlord). Notwithstanding any of the foregoing to the contrary, Tenant shall not have the right to terminate this Lease if the willful misconduct of Tenant or rebuildingany Tenant’s Agent shall have caused the damage or destruction. Mortgagee may require Landlord and Tenant agree that plans their respective rights in the event of any casualty to the Premises shall be governed by the provisions set forth above in this Article, and specifications the parties hereby waive the provisions of Section 1932, Subdivision 2, and Section 1933, Subdivision 4, of the California Civil Code.
Section 17.4. Notwithstanding anything contained herein, if neither Landlord nor Tenant has terminated this Lease, and the Landlord’s Restoration Work is not Substantially Completed for any reason, including Force Majeure, other than the restorationfault of Tenant, repairby the date which is six (6) months following the Landlord Estimated Completion Date set forth in the Casualty Notice (the “Outside Completion Date”), replacement or rebuilding then Tenant shall have the right to terminate this Lease by delivering written notice of such election to Landlord during the first five (5) business days of each calendar month following the Outside Completion Date until such time as the Landlord’s Restoration Work is Substantially Complete, which termination shall be submitted by notice to and approved Landlord (the “Damage Termination Notice”), effective as of a date set forth in the Damage Termination Notice (the “Damage Termination Date”), which Damage Termination Date shall not be less than ten (10) business days following the date such Damage Termination Notice was delivered to Landlord. Notwithstanding the foregoing, if Tenant delivers a Damage Termination Notice to Landlord, then Landlord shall have the right to suspend the occurrence of the Damage Termination Date for a period ending thirty (30) days after the Damage Termination Date set forth in the Damage Termination Notice by Mortgagee delivering to Tenant, within five (5) business days of Landlord’s receipt of the Damage Termination Notice, written notice that it is Landlord’s good faith judgment that the Landlord’s Restoration Work shall be Substantially Completed within thirty (30) days after the Damage Termination Date. If the Landlord’s Restoration Work is Substantially Completed prior to the commencement expiration of such thirty (30) day period, then the Damage Termination Notice shall be of no force or effect, but if such work is not Substantially Completed within such thirty (30) day period, then this Lease shall terminate upon the expiration of such thirty (30) day period. Notwithstanding anything set forth to the contrary in this Section 17.4, Tenant shall have the right to terminate this Lease under this Section 17.4 only if each of the workfollowing conditions are satisfied: (a) the damage to the Building by fire or other casualty was not caused by the negligence or willful misconduct of Tenant or a Tenant Agent; (b) Tenant is not then in economic default or Event of Default under this Lease; (c) as a result of the damage, Tenant cannot reasonably conduct business from the Premises; and (d) as a result of such damage, Tenant does not occupy or use the Premises at all. Any surplus which may remain out In the event this Lease is terminated in accordance with the terms of said this Section 17.4, Tenant shall assign to Landlord (or its designee) all insurance proceeds after payment payable to Tenant under Tenant’s insurance required under Section 13.2 of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partythis Lease.
Appears in 1 contract
Samples: Lease Agreement (Invitae Corp)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice SECTION 9.1 In the case of any particular casualty to the Improvements resulting in damage to or destruction in excess of One Hundred Thousand and No/100 Dollars ($100,000), Tenant shall promptly give written notice thereof to Landlord. Regardless of the amount of any improvements on damage or destruction, Tenant shall, at its sole cost and expense, and whether or not the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notesif any, shall be added to and become a part of sufficient for the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgageepurpose, upon or in reduction of the Indebtedness then most remotely to be paideither restore, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restorationreplace, replacement rebuild or rebuilding of alter the improvements on the Mortgaged Property shall be Improvements as nearly as possible to a their value, condition of at least equal value as and character immediately prior to such damage or destruction substantially in accordance with plans and specifications approved in writing by Landlord and any Mortgagee (such approval shall not be unreasonably withheld, conditioned or delayed). Such restoration, repairs, replacements, rebuilding or alterations shall be commenced promptly, and prosecuted in a good and workmanlike manner with reasonable diligence. Within thirty (30) days or such longer period as is reasonably necessary after any casualty, but in no event greater than sixty (60) days after such casualty, Tenant shall deliver to Landlord an estimate of the costs to repair, restore and/or rebuild the Demised Premises in accordance with the terms of this Lease, which estimate shall be prepared by a licensed contractor or architect acceptable to Landlord (such consent shall not be unreasonably withheld, conditioned or delayed).
SECTION 9.2 All insurance proceeds received by Landlord or any Mortgagee, on account of such damage or destruction, less the costs, fees and such net proceeds expenses, if any, incurred in connection with adjustment of insurance the loss, shall be made available therefor under applied to pay or, if Tenant elected to make advance payments, reimburse Tenant, for the conditions payment of the cost of the aforesaid restoration, repairs, replacements, rebuilding or alterations, including the cost of temporary repairs or for the protection of property pending the completion of permanent restoration, repairs, replacements, rebuilding or alteration (all of which temporary repairs, protection of property and in permanent restorations, repairs, replacements, rebuilding or alterations are hereinafter collectively referred to as the manner set forth below. So long as "restoration"), and provided there exists is no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collectionunder this Lease, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed out from time to time as such restoration progresses upon the written request of Tenant which shall be accompanied by the following:
(provided a) A certificate signed by Tenant, dated not more than five (5) days prior to such request, setting forth the following:
(i) that the sum then requested either has been paid by Tenant, or is justly due to contractors, subcontractors, materialmen, engineers, architects or other Persons who have rendered services or furnished materials for the restoration therein specified, the names and addresses of such Persons, a brief description of such services and materials, the several amounts so paid or due to each of such Persons in respect thereof, that no default exists part of such expenditures has been or is being made the basis, in any previous or then pending request, for the withdrawal of insurance money or has been made out of the proceeds of insurance received by Tenant, and that the sum then requested does not exceed the value of the services and materials described in the certificate;
(ii) that on the date of Tenant's certificate, except for the amount, if any, stated pursuant to the foregoing subclause (a)(i) in such certificate to be due for services or materials and any retainage permitted under the agreement with the contractor, there is no outstanding indebtedness known to the Tenant, after due inquiry, which is then due for labor, wages, materials, supplies or services in this Agreement or in any connection with such restoration; and
(iii) that on the date of Tenant's certificate the cost, as estimated by Tenant, of the Instruments restoration required to be done subsequent to the date of such certificate in order to complete the same, does not exceed the insurance money, plus amounts otherwise available to Tenant, after payment of the sum requested in such certificate;
(b) A title company or official search, showing that there have not been filed with respect to the Demised Premises, any Lease vendor's, contractor's, mechanic's, laborer's or materialman's statutory or similar lien which has not been discharged of record, except such as will be discharged upon payment of the sum requested in such certificate; and In the event the total cost of the restoration exceeds the Insurance Threshold Amount at the time the certificate is delivered, the certificate required by clause (a) of each disbursement)this Section 9.2 shall be signed also by an independent licensed architect and/or engineer, after first deducting who shall be in charge of the expenses restoration and shall be selected by Tenant and approved in writing by Landlord. Upon compliance with the foregoing provisions of disbursement includingthis Section 9.2, without limitationthere shall be paid or caused to be paid out of such insurance money to Tenant or the Persons named pursuant to subclause (a)(i) of this Section 9.2 in such certificate the respective amounts stated therein to have been paid by Tenant or be due to them, reasonable attorneys’ feesas the case may be. If the insurance money at the time available for the purpose, costs of title insuranceless the actual costs, escrows and closings by the title company and fees and expenses expenses, if any, incurred in connection with the adjustment of the disbursing partyloss, upon shall be insufficient to pay the disbursing party being provided with satisfactory evidence of the entire cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repairTenant shall pay the deficiency. Any such deficiency shall be paid by Tenant prior to application of the insurance money. Upon receipt by Landlord, replacement or rebuilding shall exceed ninety percent the Mortgagee, of the items required by clauses (90%a) and (b) of this Section 9.2 evidencing that the value restoration has been completed and paid for in full and that there are no liens of the work performed from time character referred to time herein or right to obtain the same by filing, and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, provided (i) Lessor shall be reasonably satisfied that sufficient in the reasonable judgment of Mortgagee, funds are available to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for complete the restoration, repairand (ii) Tenant is not in default under this Lease, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement any balance of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.insurance
Appears in 1 contract
Samples: Net Lease (Wam Net Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice SECTION 11.01. In the case of casualty resulting in damage to or destruction to the Mortgaged Premises, the Mortgagor shall promptly give written notice thereof to the Mortgagee.
SECTION 11.02. In all cases subject to the terms and provisions of the Credit Agreement, unless the Mortgagor elects to apply insurance proceeds to reduce the Obligations secured hereby, regardless of the amount of any improvements on such damage or destruction, the Mortgaged Property Mortgagor shall at its sole cost and expense, and whether or not the insurance proceeds, if any, shall be sufficient for the purpose, restore, repair, replace, rebuild or alter the same as nearly as possible to personal its value, condition and character immediately prior to such damage or destruction or with such changes or alteration as may be made at the Mortgagor’s election in conformity with and subject to the conditions of Article 6 hereof. Such restoration, repairs, replacements, rebuilding or alteration shall be commenced promptly and prosecuted with reasonable diligence. If (i) estimates received, and/or made, by the Mortgagee disclose that the cost of restoration would be in excess of the amount of insurance proceeds available therefor, or (ii) during the period of restoration by the Mortgagor the amount of the insurance proceeds shall not be sufficient to complete such restoration, then in either of such events, the Mortgagor shall deposit with the Mortgagee the amount required to complete such restoration or such other security as shall be reasonably satisfactory to the Mortgagee.
SECTION 11.03. All proceeds of and payments under insurance policies with respect to any casualty event shall be paid to the Mortgagee and applied by the Mortgagee first to payment of the actual costs, fees and expenses, if any, incurred by the Mortgagee in connection with the adjustment of the loss and settlement with the insurance company. The remainder of such insurance proceeds shall be applied, in accordance with the terms and provisions of the Credit Agreement, either (i) in reduction of the Obligations secured by this Mortgage, principal and interest, , or (ii) to the payment of the costs of the aforesaid restoration, repairs, replacement, rebuilding or alterations, including the cost of temporary repairs and the cost of protection of property used in pending the operation completion of permanent restoration, repairs, replacement, rebuilding or alterations (all of which temporary and permanent repairs, restoration, replacement, rebuilding, alterations and protection of property are hereinafter collectively referred to as the “Restoration”).
SECTION 11.04. If under the provisions of this Article 11, insurance proceeds are to be applied to the cost of Restoration of the Mortgaged Property and in case of loss covered by policies of insurancePremises, the Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of shall hold such insurance proceeds, together with interest thereon from any amounts deposited with the date of such expense at Mortgagee pursuant to Section 11.02 hereof, and advance the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or same for application to the cost of rebuilding or restoration the Restoration from time to time as the Restoration progresses. Such funds will be advanced upon the written request of the improvements on Mortgagor and upon the Mortgagor’s compliance with such reasonable requirements therefor as the Mortgagee shall impose. Upon completion of all of the Restoration in a good and workmanlike manner and substantially in accordance with any plans and specifications therefor which the Mortgagee may have required, and upon receipt by the Mortgagee of evidence satisfactory to the Mortgagee that the Restoration has been completed and that the Mortgaged Property. However, if Mortgagee shall require that the improvements Premises is not and will not become subject to any mechanic’s or materialmen’s Liens on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding account of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage Restoration or destructionany part thereof, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification balance of the Leases (if any), insurance proceeds or sums deposited with the Mortgagee pursuant to Section 11.02 hereof and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding Restoration shall be applied to reduce the Obligations secured by this Mortgage, and any balance remaining after repayment of the Obligations shall be paid over to the Mortgagor.
SECTION 11.05. Notwithstanding any provision of this Article 11 to the contrary, if a Default or restoration an Event of Default should occur and be continuing at any time during any Restoration of the Mortgaged Property or personal property. HoweverPremises, if the Mortgagee shall require that have no obligation to continue to apply insurance proceeds to the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, Restoration and may apply such net insurance proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding to reduction of the improvements on Obligations secured hereby.
SECTION 11.06. In no event shall the Mortgaged Property shall be disbursed from time application to time (provided no default exists in the Obligations of the Mortgagor or, whether or in this Agreement not then due or in payable, of any insurance proceeds postpone, xxxxx or reduce any of the Instruments periodic installments of principal and interest thereafter to become due under the Notes or the Credit Agreement until the Obligations are satisfied in full. If the Mortgagee shall acquire title to the Mortgaged Premises either by virtue of a deed in lieu of foreclosure or a judicial sale thereof pursuant to proceedings under this Mortgage, the Credit Agreement or any Lease at the time of each disbursement)other Loan Document, after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses then all of the disbursing partyMortgagor’s estate, upon right, title and interest in and to all such policies, including unearned premiums thereon and the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificatesproceeds thereof, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining vest in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.
Appears in 1 contract
Samples: Credit Agreement (Universal Stainless & Alloy Products Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to or destruction of any improvements on A. If the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor Leased Premises or the lessees under any lease of Building is substantially and materially damaged by fire or other casualty, so that all or any portion of the Mortgaged Property Leased Premises is untenantable, even if the Leased Premises are not actually damaged, Landlord may, at its option, exercisable within ninety (“90) days after the date of such damage, elect by written notice to Tenant either to repair and restore the same or to terminate this Lease” .
B. If Landlord shall elect under Paragraph A above to repair or “Leases”). Any expenses incurred restore the Leased Premises, or the Building, Landlord shall do so as promptly as reasonably possible, and this I as shall remain in full force and effect during the making of such repairs, except that if such loss or damage was not caused in whole or in part by Mortgagee in the collection negligent act of insurance proceedsTenant, together with interest thereon its agents, employees, contractors or licensees, Rent shall xxxxx as follows:
(i) If as a result of such damage or destruction the Leased Premises is rendered totally untenantable, Rent shall xxxxx from the date of such expense at damage or destruction until the highest default rate set forth Leased Premises, or any portion thereof accepted by Tenant, is ready for occupancy; or
(ii) If as a result of such damage or destruction the Leased Premises is rendered partially untenantable, and from and after the date Landlord restores a portion, but less than all of the Leased Premises to tenantable condition, and Tenant with Landlord's written consent elects to reoccupy such portion prior to the entire Leased Premises being restored to tenantable condition, Rent shall be reduced in the Notes, shall be added to and become a part proportion that the untenantable square foot area of the Indebtedness and shall be reimbursed by Mortgagor Leased Premises bears to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction the total square foot area of the Indebtedness then most remotely Leased Premises, and such reduction shall continue until the damaged or destroyed portion of the Leased Premises is ready for occupancy. The foregoing provisions to the contrary notwithstanding, Landlord's obligation to repair, replace and restore the Leased Premises shall never exceed the scope of the work required to be paiddone by Landlord at its cost in originally constructing the Leased Premises pursuant to Exhibit B, without a prepayment feeand Landlord shall not be obligated or required to repair, replace or restore any damage or injury, or make any repairs to or replacement or restoration of any tenant finish items or additions or improvements made in or to the cost Leased Premises by Tenant, or by Landlord for or on behalf of rebuilding or restoration Tenant, (hereinafter "Tenant Paid Improvements") which are in excess of the improvements on original tenant finish which Landlord was obligated to provide at its cost pursuant to Section 13 hereof, except to the Mortgaged Property. Howeverextent that the loss or damage of such Tenant Paid Improvements is insured under one or more insurance policies maintained or paid for by Tenant, and which are payable to Landlord, but then only to the extent that Landlord does in fact receive such insurance proceeds and can use such proceeds to repair or replace such damaged or destroyed Tenant Paid Improvements.
C. If Landlord shall elect under Paragraph A above to terminate this Lease, this Lease shall terminate as of the date of such damage or destruction.
D. Anything contained in this Section 19 to the contrary notwithstanding, if Mortgagee shall require the Building of which the Leased Premises is a part, is substantially damaged or destroyed by fire or other casualty and Landlord elects not to repair or rebuild the same, Landlord may, at its option, elect to terminate this Lease, even though the Leased Premises may not be damaged or destroyed by such fire or other casualty; and provided further, that if the improvements on Leased Premises are substantially damaged or destroyed by fire or other casualty at any time when the Mortgaged Property be repaired or rebuiltthen remaining Lease Term is less than twelve (12) months (exclusive of any unexercised renewal options), then Landlord may, at its option, exercised within thirty (30) days after the repair, restoration, replacement or rebuilding date of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and elect to cancel this Lease rather than restore the Leased Premises as herein provided, in which event Landlord may retain all insurance proceeds payable to Landlord because of such net proceeds of insurance loss or damage.
E. Any notice given hereunder shall be made available therefor under the conditions and given in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyhereinafter provided.
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to If the whole or destruction of any improvements on the Mortgaged Property or to personal property used in the operation part of the Mortgaged Property Initial Improvements and in case other Improvements used for the Permitted Uses are damaged or destroyed by any cause whatsoever, whether insured or uninsured, at any time during the Term of loss covered by policies of insurancethis Lease, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection Tenant shall, irrespective of insurance proceeds, together promptly commence to replace or repair such Improvements or any part thereof that is damaged or destroyed, and complete such repair and/or restoration with interest thereon due diligence and at its sole cost and expense, with such changes, alterations or modifications as are reasonably determined by Tenant so long as such changes, alterations or modifications (a) do not diminish the overall utility for the Permitted Uses, and (b) are reasonably comparable to the quality of the Improvements that existed prior to the damage or destruction. The parties recognize that such damage or destruction may require emergency replacement or repair. Subject to the rights of the Permitted Institutional Mortgagees, Tenant will be entitled to all insurance proceeds in order to effect such replacement, modifications or alterations. Notwithstanding the foregoing, in the event that the Improvements are substantially damaged, and the insurance proceeds are required to be paid to any Permitted Institutional Mortgagee to repay the indebtedness secured by the Permitted Institutional Mortgage, Tenant’s obligation to rebuild the Premises (other than the Excluded Areas, for which there is no such obligation to rebuild under this Lease) shall be limited to the amount of the proceeds received by Tenant from the date of insurer (the “Remaining Proceeds”). If in such expense at case Tenant reasonably determines that the highest default rate set forth in the Notes, shall be added to and become a part continued use of the Indebtedness Premises after such replacement and shall be reimbursed repair in substantially the same manner as conducted by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as Tenant prior to such damage or destructiondestruction will not be economic and feasible, Tenant may elect not to repair or replace the damaged Improvements and terminate this Lease by giving Landlord one hundred eighty (180) days written notice thereof, specifying the reasons for such termination, provided however that in such event Tenant shall have the right to use all or such portion of the Remaining Proceeds as is reasonably necessary to prevent any imminent danger to or at any buildings on the Premises, and such net proceeds of insurance (x) at Landlord’s request, Tenant shall be made available therefor under the conditions demolish any destroyed buildings and secure any damaged buildings, in each case to a safe condition reasonably satisfactory to Landlord and in compliance with the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement)Legal Requirements, and provided any loss or damage cannot, in (y) deliver to Landlord the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in Remaining Proceeds minus the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such prevention of imminent danger, demolishing and/or securing of buildings and assign to Landlord all its right, title and interest to any other insurance proceeds or other funds held in as may be available. Tenant’s rights and obligations under this Article 11 shall survive the hands termination of Mortgagee or the disbursing partythis Lease.
Appears in 1 contract
Samples: Ground Lease
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to If all or destruction of any improvements on the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness Demised Premises is damaged or destroyed by fire or other casualty, this Lease will continue in full force and shall effect, unless terminated as provided below, and Landlord will repair, restore or rebuild the Demised Premises to its condition at the time of the occurrence of the loss; provided, however, Landlord will not be reimbursed obligated to commence such repair, restoration or rebuilding until insurance proceeds are received by Mortgagor Landlord, and Landlord's obligation to Mortgagee immediately rebuild will be limited to and conditioned upon demand. Such net receipt of proceeds may by Landlord under any insurance policy or policies, if any, which have not been required to be applied by Mortgagee, upon or in towards the reduction of any indebtedness secured by a mortgage covering the Indebtedness then most remotely Project or any portion thereof. Txxxxx agrees to notify Landlord in writing within (30) days of Tenant's opening date in the Demised Premises of the actual cost of all permanent leasehold improvements and betterments approved by Landlord and installed or to be paidinstalled by Tenant in the Demised Premises (whether those improvements have been paid for entirely or partially by Tenant), without a prepayment feebut exclusive of Tenant's personal property, movable trade fixtures and contents. Tenant will give similar notifications to Landlord not less than thirty (30) days prior to the commencement of any proposed alterations, additions, or improvements to the cost of rebuilding or restoration Demised Premises approved by Landlord subsequent to the initial construction of the improvements on Demised Premises. If Tenant fails to comply with the Mortgaged Property. Howeverforegoing provisions, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannotLandlord will sustain by reason thereof will be borne by Txxxxx and will be paid immediately by Tenant upon receipt of a bill therefor and evidence of such loss, and in addition to any other rights or remedies reserved by Landlord under this Lease, Landlord's obligations under this Article VIII to repair, replace and/or rebuild the Demised Premises will be deemed inapplicable. In lieu thereof Landlord may, at its election, either restore or require Tenant to restore the Demised Premises to the condition that existed prior to such loss, and in either case, Tenant will pay the cost of such restoration. Notwithstanding anything to the contrary contained in this Section 8.1 or elsewhere in this Lease, Landlord, at its option, may terminate this Lease by written notice to Tenant if:
(a) The Demised Premises or the Building in which the Demised Premises are located will be damaged or destroyed as a result of an occurrence which is not covered by Landlord's insurance or if Landlord determines it is economically infeasible to reconstruct and/or operate the Project; or
(b) The Demised Premises will be damaged or destroyed during the last three (3) years of the Term or any renewals thereof; or
(c) Any or all of the buildings or Common Areas of the Project are damaged (whether or not the Demised Premises are damaged) to such an extent that, in the sole judgment of MortgageeLandlord, result the Project cannot be operated as an economically viable unit. If the Demised Premises are damaged or destroyed and Landlord does not elect to terminate this Lease, Landlord and Tenant will commence their respective obligations under this Article as soon as is reasonably possible and prosecute the same to completion with all due diligence. Tenant covenants and agrees to reopen for business in the terminationDemised Premises within thirty (30) days after notice from Landlord that the Demised Premises are ready for re occupancy. In the event of any termination of this Lease under the provisions of Section 8.1, cancellation or modification this Lease will terminate at the end of the Leases (if any)calendar month in which such notice of termination is given. No damage or destruction to the Demised Premises will allow Txxxxx to surrender possession of the Demised Premises or affect Txxxxx's liability for the payment of rents or charges or any other covenant contained in this Lease, except as may be specifically provided in this Lease. Notwithstanding the foregoing, Minimum Rent will be abated proportionately to the degree to which Txxxxx's use of the Demised Premises is impaired during the period of any damage, repair or restoration provided for in this Article VIII; provided, however, that Minimum Rent, and other sums due hereunder will not be abated to an extent which would render Minimum Rent to be less than the monthly amount of insurance proceeds to be paid to Landlord under the business interruption policy described in Section 5.l(d); and provided further that if the Leases so require and the insurers do not deny liability as Landlord elects to repair any damage to the insuredsDemised Premises, such insurance proceedsany abatement of Minimum Rent will end fifteen (15) days after notice by Landlord to Tenant that the Demised Premises have been repaired. Except for the abatement of Minimum Rent provided above, after deducting expenses incurred in collection, shall Tenant will not be made available under the conditions and entitled to any compensation or damage for loss in the manner specified in use of the following paragraphwhole or any part of the Demised Premises and/or any inconvenience or annoyance occasioned by any damage, for the destruction, repair or restoration. Unless this Lease is terminated by Landlord, Tenant will repair, restorationrestore, replacement or rebuilding and re-fixture all parts of improvements on the Mortgaged Property Demised Premises not insured under any insurance policies insuring Landlord in a manner and to a condition of at least equal value as existed to that existing prior to such damage its destruction or destruction. Otherwisedamage, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ feesall exterior signs, costs of title insurancetrade fixtures, escrows and closings by the title company and fees and expenses of the disbursing partyequipment, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificatesdisplay cases, waivers of lienfurniture, contractors’ and subcontractors’ sworn statements furnishings, and other evidence installations of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear personalty of Tenant. The proceeds of all mechanics’ lien claims. No payment made prior insurance carried by Tenant on its property shall be delivered to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time Landlord to time and at all times the undisbursed balance of such proceeds remaining be held in the hands of the disbursing party, together with funds deposited trust for the purpose of said repair and replacement. Tenant will give to Landlord prompt written notice of any damage to or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment destruction of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement a portion of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds Demised Premises resulting from fire or other funds held in the hands of Mortgagee or the disbursing partycasualty.
Appears in 1 contract
Samples: Lease (Ra Medical Systems, Inc.)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to or destruction (a) Promptly, and in any case within five (5) Business Days after the occurrence thereof, Loan Parties shall notify Agent of any improvements on the Mortgaged Property fire or other Casualty with respect to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property Premises with an estimated claims value in excess of $1,000,000. Such notice also shall generally describe the nature and extent of such Casualty. Promptly upon the same becoming available, Loan Parties shall deliver to Agent Loan Parties’ best estimate of the cost of Restoration.
(“Lease” or “Leases”b) Agent shall be entitled to receive all insurance proceeds payable on account of a Casualty in excess of the Casualty Threshold (for the avoidance of doubt, it is understood that all proceeds payable on account of a Casualty in excess of the Casualty Threshold shall be deposited with Agent, not merely the portion of such proceeds which exceeds the Casualty Threshold). Any expenses incurred by Mortgagee in Subject to the collection terms hereof, each Loan Party hereby irrevocably assigns, transfers and sets over to Agent all of such Loan Party’s right to any such insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth award or payment. Loan Parties hereby irrevocably authorize and empower Agent, in the Notesname of Loan Parties or otherwise, shall to file for and prosecute in its own name what would otherwise be added to and become a part of Loan Parties’ claim for any such insurance proceeds. Notwithstanding the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgageeforegoing, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So so long as there exists no Event of Default (as defined in the shall have occurred and shall then be continuing and provided Loan Agreement)Parties promptly file all claims and diligently prosecute same, and provided any loss or damage cannot, in subject to the sole judgment of Mortgagee, result in the termination, cancellation or modification terms of the Leases (if any)Ground Leases, Loan Parties shall have the right to file, adjust, settle and if the Leases so require and the insurers do not deny liability as to the insureds, prosecute any claim for such insurance proceeds; provided, after deducting expenses incurred in collectionhowever, that Loan Parties shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement not agree to any adjustment or rebuilding settlement of improvements on the Mortgaged Property any such claim payable with respect to a condition of at least equal value as existed Casualty the insurance proceeds with respect to which are greater than the Casualty Threshold without the prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction consent of the Indebtedness then most remotely Requisite Lenders, which consent shall not be unreasonably withheld, conditioned or delayed. Loan Parties shall within ten (10) days after demand pay to be paid in inverse chronological orderAgent all documented, reasonable out-of-pocket costs and expenses (including the fee of any insurance consultant or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions adjuster and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing partydisbursements) incurred by Agent in connection with a Casualty and seeking and obtaining any insurance proceeds, upon the disbursing party being provided award or payment with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.respect
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice (a) Subject to the provisions of subsection (b) below, Buyer shall be bound to purchase the Property for the Purchase Price as required by the terms of this Agreement without regard to the occurrence during the Contract Period of any damage to or destruction of the Improvements ("Contract Period Damage"). Buyer shall receive a credit in escrow in the amount of any improvements deductible under Seller's insurance policies and any insurance proceeds (net of reasonable costs incurred in securing such proceeds) collected by Seller prior to the Closing Date as a result of any Contract Period Damage and not expended by Seller on repair, replacement or restoration of the Mortgaged Property pursuant to subsection (c) below. Seller promptly shall deliver to Buyer any such insurance proceeds as shall be collected by Seller following the Closing Date.
(b) Notwithstanding the foregoing, if the cost of repair, replacement or restoration of the Property attributable to any Contract Period Damage exceeds $100,000.00, either party may elect to terminate this Agreement by written notice to the other given not more than ten (10) days following the event of damage or destruction and not later than one day prior to the Closing Date. If the Contract Period Damage arises out of an uninsured risk, Seller shall elect, by written notice given within such 10-day period, either to terminate this Agreement or to personal property used close escrow as contemplated in this Agreement with a reduction in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or Purchase Price equal to the cost of rebuilding repair, replacement or restoration of the improvements on the Mortgaged Property. HoweverUpon termination of this Agreement pursuant to this paragraph, if Mortgagee Seller shall require that return to Buyer the improvements on Deposit. In the Mortgaged event neither party timely elects to terminate this Agreement pursuant to this subsection, the provisions of subsection (a) above shall be applicable.
(c) Upon the occurrence of any Contract Period Damage, Seller may, but shall not be obligated to, use any insurance proceeds collected with respect to such Contract Period Damage to repair, replace or restore the Property be repaired or rebuilt, then to the extent reasonably feasible prior to the Closing Date. Seller's election to commence the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property prior to the Closing Date shall in no way imply that Seller has made any representation or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt warranty with respect to any work performed in accordance connection with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding restoration ("Seller's Repairs"). The plans, materials, choice of contractor and all other material aspects of the improvements on the Mortgaged Property performance of Seller's Repairs shall be disbursed from time subject to time Buyer's review and approval (provided no default exists which shall not be unreasonably withheld) and to the general disclaimer set forth in Section 2.3 above. In the event that Buyer does not approve any aspect of Seller's Repairs in writing within five (5) days following Seller's request for such approval, Seller may, at its option, terminate this Agreement by written notice delivered to Buyer on or before the Closing Date.
(d) Notwithstanding anything in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restorationcontrary, repairthe insurance proceeds to be credited or delivered to Buyer pursuant to this Section 7.1 shall exclude business interruption or rental loss insurance proceeds, replacement or rebuilding shall exceed ninety percent (90%) of if any, allocable to the value of period through the work performed from time to time and at all times the undisbursed balance of such Closing Date, which proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved retained by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partySeller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Metric Income Trust Series Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice Section 15.01. In case of damage to or destruction of the Building or any improvements on part thereof by fire or otherwise, Lessee will promptly give written notice thereof to Lessor and, at Lessee’s sole cost and expense, and whether or not the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notesif any, shall be added to and become a part of sufficient for the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgageepurpose, upon or in reduction of the Indebtedness then most remotely to be paidrestore, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restorationreplace, replacement rebuild or rebuilding of alter the improvements on the Mortgaged Property shall be same as nearly as possible to a its value, condition of at least equal value as and character immediately prior to such damage or destructiondestruction or with such changes or alterations as may be made at Lessee’s election in conformity with and subject to the conditions of Article 9 hereof. Such restoration, and such net proceeds of insurance repairs, replacements, rebuilding or alterations shall be made available therefor under the conditions commenced promptly and in the manner set forth belowprosecuted with reasonable diligence, unavoidable delays excepted.
Section 15.02. So long as there exists no Event All insurance money paid to Lessor or any Mortgagee on account of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may less the reasonable cost, if any, incurred in connection with adjustment of the loss and the collection thereof, shall, subject to the rights of any insurance companies and consents of all necessary parties, be applied by Mortgagee, in its sole discretion, upon Lessor and in reduction any such Mortgagee to the payment of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of the aforesaid restoration, repairs, replacement, rebuilding or restoration alterations, including the cost of temporary repairs or for the Mortgaged Property protection of property pending the completion of permanent restoration, repairs, replacements, rebuilding or personal property. Howeveralterations (all of which temporary repairs, if Mortgagee shall require that protection of property and permanent restoration, repairs, replacement, rebuilding or alterations are hereinafter collectively referred to as the Mortgaged Property be repaired or rebuilt in accordance with this Agreement“restoration”), such net proceeds of insurance and shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed paid out to Lessee from time to time (provided no default exists as such restoration progresses and shall be received by Lessee in trust for the or in this Agreement or in any purposes of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of paying the cost of completion such restoration upon the written request of Lessee which shall be accompanied by the following:
(1) a certificate signed by an officer of Lessee; dated not more than thirty (30) days prior to such request, setting forth the following:
(a) that the sum then requested either has been paid by Lessee, and/or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons who have rendered services or furnished materials for the restoration therein specified, and giving a brief description of such work services and materials and the several amounts so paid and/or due to each of said persons in respect thereof, and stating that no part of such expenditures has been or is being made the basis, in any previous or then pending request, for the withdrawal of insurance money or has been made out of the diligent proceeds of insurance received by Lessee, and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall sum then requested does not exceed ninety percent (90%) of the value of the work performed from time services and materials described in the certificate.
(b) that except for the amount, if any, stated (pursuant to time and at all times the undisbursed balance foregoing subclause (1) (a)) in such certificate to be due for services or materials, there is no outstanding indebtedness known to the persons signing such certificate, after due inquiry, which is then due for labor, wages, materials, supplies or services in connection with such restoration which, if unpaid, might become the basis of a vendor’s, mechanic’s, laborer’s or materialman’s statutory or similar lien upon such restoration or upon the Property or any part thereof or upon Lessee’s Leasehold interest therein.
(c) That the cost, as estimated by the persons signing such certificate, of the restoration required to be done subsequent to the date of such proceeds certificate in order to complete the same, does not exceed the insurance money remaining in the hands of Lessor and any such Mortgagee after payment of the disbursing partysum requested in such certificate.
(2) an opinion of counsel or other evidence, together satisfactory to Lessor, to the effect that there has not been filed with funds deposited respect to the Property or any part thereof or upon Lessee’s leasehold interest therein any vendor’s, mechanic’s, laborer’s, materialman’s or other lien which has not been discharged of record, except such as will be discharged by payment of the amount then requested. In the event that any such restoration involves expenditures in excess of Fifty Thousand and 00/100 Dollars ($50,000) the certificate required by clause (1) of this Section shall be a certificate signed by the architect or engineer in charge of the restoration, who shall be selected by Lessee and approved in writing by Lessor, such approval not to be unreasonably withheld. Upon compliance with the foregoing provisions of this Section, Lessor or any such Mortgagee or Mortgagees shall, out of such insurance money, pay or cause to be paid to Lessee or the persons named (pursuant to subclause (1)(a) of this Section) in such certificate the respective amounts stated therein to have been paid by Lessee or to be due to them, as the case may be. If the net insurance money as aforesaid at the time held by Lessor or any such Mortgagee or Mortgagees shall be insufficient to pay the entire cost of such restoration, Lessee will pay the deficiency. Upon receipt by Lessor or any such Mortgagee or Mortgagees of satisfactory evidence, of the character required by clauses (1) and (2) of this Section, that the restoration has been completed and paid for in full and that there are no liens of the purpose character referred to therein, any balance of the insurance money at the time held by Lessor or irrevocably committed for any such purposeMortgagee or Mortgagees shall be paid to Lessee without interest, subject to the further rights of the holders of any such Mortgages in the order of their priority.
Section 15.03. In case of damage to or destruction of the Building by fire or otherwise which shall amount to substantially total destruction of the Building or shall be of such character as in the judgment of Lessee to require demolition of the remainder of the Building, Lessee shall have the right, at its option, either (a) to restore, replace or rebuild the Building, as provided in this Lease, or (b) to terminate this Lease by written notice to Lessor given within six months after the happening of such damage or destruction, to take effect two years after receipt of such notice, accompanied by payment to Lessor of the net rent and other charges payable by Lessee under this Lease up to such date of termination. In the event that Lessee shall elect to terminate this Lease as provided in this Section 15.03, the following provisions shall also be applicable:
(A) All insurance money paid to Lessor or any Mortgagee on account of such damage or destruction, less the reasonable cost, if any, incurred in connection with adjustment of the loss and the collection thereof, shall be sufficient applied as follows and in the reasonable judgment following order of Mortgageepriority:
(1) Lessor shall be entitled to retain or receive from such insurance money the sum of Seventeen million Dollars ($17,000,000), as payment in full for the conveyance provided for in Paragraph (B) hereof.
(2) Each Leasehold Mortgagee shall he entitled to retain or receive from the balance of such insurance money remaining after the payment provided for in subparagraph (1) above an amount sufficient to pay and satisfy the full amount of the debt secured by its Leasehold Mortgage.
(3) Lessor shall be entitled to retain or receive from the balance of such insurance money remaining after the payment provided for the cost of completion of all in subparagraphs (1) and (2) above such restorationamount as shall be determined by an appraiser, repairengineer, replacement or rebuilding. Mortgagee may require that plans contractor appointed and specifications for the restoration, repair, replacement or rebuilding be submitted to paid by Lessee and approved in writing by Mortgagee prior Lessor to be sufficient to pay all costs involved in taking the commencement action required to be taken by Lessee under the provisions of Paragraph (C) hereof, which amount shall be held in escrow by Lessor as hereinafter provided.
(4) Lessee shall be entitled to receive any balance of such insurance money remaining after the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building payments provided for in subparagraphs (1), (2) and restoration may(3) above.
(B) Lessor shall convey to Lessee, at the option time set for such termination of Mortgagee, be applied either on account this Lease upon receipt by Lessor of the Indebtedness sum of Seventeen million Dollars ($17,000,000) as provided in Paragraph (A) (1) above, the Demised Premises and all right, title and interest of Lessor in and to the Building.
(C) Promptly after giving notice to Lessor of its election to terminate this Lease, Lessee shall proceed with reasonable diligence, at Lessee’s own cost and expense, to conduct any necessary demolition of the remainder of the Building, to clear the Demised Premises of debris and to take such other action as may be required in order to comply with all laws, ordinances, orders, rules, regulations and requirements of all Federal, state and municipal governments, departments, commissions, boards and officers which may then most remotely be applicable to the Property or to the use or manner of use of the Property.
(D) If Lessee shall fail or refuse to comply with its obligations under Paragraph (C) above, Lessor shall have the right; but shall not be obligated, to take or cause to be paid taken all action required to be taken by Lessee under said Paragraph (C) and to apply to the cost thereof all or any part of the amount received by Lessor in inverse chronological orderescrow pursuant to Paragraph (A)(3) above, without a prepayment feeand in that event Lessee shall be liable to Lessor for any excess of such cost over and above the amount thus received by Lessor in escrow and Lessee will indemnify and hold harmless the Lessor for any such excess cost. The provisions of Paragraph (D) above shall survive the expiration of this Lease and the conveyance of the Demised Premises and of the Lessor’s right, title and interest in and to the building, pursuant to Paragraph (B), above.
(E) When and if Lessee shall have complied with all obligations under Paragraph (C) above, Lessor shall release and pay over to Lessee the amount received by Lessor in escrow pursuant to Paragraph (A) (3) above. In the event of any dispute between Lessor and Lessee as to whether Lessee shall have complied with its obligations under said Paragraph (C), such dispute shall be determined by arbitration as provided in Article 27 hereof.
Section 15.04. Except as provided in Section 15.03 hereof, no destruction of or damage to the Building or any part thereof by fire or any other casualty shall permit Lessee to surrender this Lease or shall relieve Lessee from its liability to pay the full net rent and additional rent and other charges payable under this Lease or from any of its other obligations under this Lease, and Lessee waives any rights now or hereafter conferred upon it by statute or otherwise to quit or surrender this Lease or the Demised Premises or any part thereof, or be paid to any person suspension, diminution, abatement or persons otherwise entitled thereto. Application or release reduction of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed rent on account of any such proceeds destruction or other funds held in the hands of Mortgagee or the disbursing partydamage.
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Samples: Lease (Empire State Realty OP, L.P.)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice Section 13.01. Except as is provided in Sections 13.04 and 13.06 hereof, in case of damage to or destruction of the Building or Building Equipment or any improvements on the Mortgaged Property part thereof by fire or other casualty, Tenant shall promptly give written notice thereof to personal property used in the operation of the Mortgaged Property Landlord, and in case of loss covered by policies of insuranceLandlord shall, Mortgagee is hereby authorized to make proof of loss if at Landlord's expense, and whether or not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon if any, shall be sufficient for the purpose, restore, repair, replace, rebuild or alter the same to restore it as nearly a possible to its condition or character immediately prior to damage or destruction. Such restorations, repairs, replacements, rebuilding or alterations shall be commenced within ninety days from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part occurrence of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance which time shall be made available therefor under the conditions extended, if necessary, by time commensurate with any delays due to adjustment of related insurance claims, preparation of plans and specifications, and applications for zoning variances and rezoning, and shall thereafter be prosecuted with reasonable diligence, unavoidable delays excepted and in accordance with applicable laws, ordinances and administrative requirements (whether federal, state or local).
Section 13.02. Prior to commencing any work Landlord shall deliver to Tenant an estimate of the manner set forth below. So long cost of the Restoration certified by an officer of Landlord and an architect or engineer (reasonably acceptable to Tenant) retained by Landlord to supervise the construction work.
A. All insurance money paid on account of such damage or destruction to the Trustee acting hereunder pursuant to the provision of Section 12.08 (or to the Landlord if the insurance proceeds are less than $50,000) hereof less the reasonable cost, if any, incurred in connection with adjustment of the loss and the collection thereof shall be applied by such Trustee (or Landlord) to the payment of the cost of the aforesaid restoration, repairs, replacement, rebuilding or alterations, including the cost of temporary repairs or for the protection of property pending the completion of permanent restoration, (all of which temporary repairs, protection of property and permanent restorations, replacements, rebuilding or alterations are hereinafter collectively referred to as there exists no Event the "Restoration" and the act of Default (doing such Restoration is hereinafter described as defined in "Restore" and "Restoring" as the Loan Agreementcontext requires), and provided any loss shall be paid out to, or damage cannotat the direction of Landlord from time to time as the Restoration progresses, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least installments equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. Howeverwork completed and materials furnished, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance and shall be made available therefor under received by Landlord for the conditions and in purposes of paying the manner set forth belowcost of such Restoration. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at At the time of each disbursement)takedown of funds, after first deducting Landlord shall prepare and make available to Tenant (if requested) a verified certificate signed by Landlord or if Landlord is a partnership or corporation, by a general partner or a senior executive officer of Landlord as the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows case may be and closings a certificate signed by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion architect or engineer in charge of such work and of construction, dated not more than thirty days following such request, setting forth the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.following:
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Damage or Destruction. Mortgagor will In case of casualty to the demised premises resulting in damage or destruction, Tenant shall promptly give Mortgagee prompt written notice thereof to Landlord. Regardless of damage to or destruction the amount of any improvements on such damage or destruction, Tenant shall at its sole cost and expense, and whether or not the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notesif any, shall be added to and become a part of sufficient for the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgageepurpose, upon or in reduction of the Indebtedness then most remotely to be paidrestore, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restorationreplace, replacement rebuild or rebuilding of alter the improvements on the Mortgaged Property shall be same as nearly as possible to a its value, condition of at least equal value as and character immediately prior to such damage or destruction, unless Tenant and such net proceeds of insurance Landlord mutually agree to revisions or that a different type building be built or that no building be built. Such restoration, repairs, replacements, rebuilding or alterations shall be made available therefor under the conditions commenced promptly and in the manner set forth belowprosecuted with reasonable diligence, unavoidable delays excepted. So long as there exists no Event All insurance money paid to Landlord on account of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may less the actual cost, fees and expenses, if any, incurred in connection with adjustment of the loss, shall be applied by Mortgagee, in its sole discretion, upon and in reduction Landlord to the payment of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of the aforesaid demolition, restoration, repairs, replacement, rebuilding or restoration alterations, including the cost of temporary repairs or for the Mortgaged Property protection of property pending the completion of permanent restoration, repairs, replacements, rebuilding or personal property. Howeveralterations (all of which temporary repairs, if Mortgagee shall require that protection of property and permanent restorations, repairs, replacement, rebuilding or alterations are hereinafter collectively referred to as the Mortgaged Property be repaired or rebuilt in accordance with this Agreement"restoration"), such net proceeds of insurance and shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed paid out from time to time as such restoration progresses upon the written request of Tenant which shall be accompanied by the following:
(provided 1) A certificate signed by the Tenant, dated not more than 30 days prior to such request, setting forth the following:
(A) That the sum then requested either has been paid by Tenant, or is justly due to contractors, sub-contractors, materialmen, engineers, architects or other persons who have rendered services or furnished materials for the restoration therein specified, the names and addresses of such persons, a brief description of such services and materials, the several amounts so paid or due to each of said persons in respect thereof, that no default exists in part of such expenditures has been or is being made the or in this Agreement or basis, in any previous or then pending request, for the withdrawal of insurance money or has been made out of the Instruments or any Lease at the time proceeds of each disbursement)insurance received by Tenant, after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall sum then requested does not exceed ninety percent (90%) of the value of the work performed from time services and materials described in the certificate.
(B) That except for the amount, if any, stated (pursuant to time and at all times the undisbursed balance foregoing subclause (1) (A)) in such certificate to be due for services or materials, there is no outstanding indebtedness known to the persons signing such certificate, after due inquiry, which is then due for labor, wages, materials supplies or services in connection with such restoration which, if unpaid, might become the basis of a vendor's, mechanic's, laborer's or materialman's statutory or similar lien upon such restoration or upon the demised premises or any part thereof or upon Tenant's leasehold interest therein.
(C) That the cost, as estimated by the persons signing such certificate, of the restoration required to be done subsequent to the date of such proceeds certificate in order to complete the same, does not exceed the insurance money, plus any amount deposited by Tenant to defray such cost and remaining in the hands of Landlord after payment of the disbursing partysum requested in such certificate.
(2) An opinion of counsel or other evidence, together reasonably satisfactory to Landlord, to the effect that there has not been filed with funds deposited for respect to the purpose demised premises or irrevocably committed for any part thereof or upon Tenant's leasehold interest therein any vendor's, mechanic's, laborer's, materialman's or other lien which has not been discharged of record, except such purposeas will be discharged by payment of the amount then requested. Upon compliance with the foregoing provisions, Landlord shall, out of such insurance money, pay or cause to be paid to Tenant or the persons named (pursuant to subclause (1) (A) above) in such certificate the respective amounts stated therein to have been paid by Tenant or to be due to it, as the case may be. If the insurance money at the time held by Landlord, less the actual cost, fees and expenses, if any, incurred in connection with the adjustment of the loss, shall be sufficient in the reasonable judgment of Mortgagee, insufficient to pay for the entire cost of completion of all such restoration, repairTenant will pay the deficiency. Upon receipt by Landlord of satisfactory evidence, replacement of the character required by clauses (1) and (2) above, that the restoration has been completed and paid for in full and that there are no liens of the character referred to therein, any balance of the insurance money at the time held by Landlord shall be paid to Tenant. The Tenant shall procure Workmen's Compensation insurance covering all persons employed in connection with the work and with respect to whom death or rebuilding. Mortgagee may require that plans bodily injury claims could be asserted against Landlord, Tenant or the demised premises, and specifications for the restorationalso procure, repair, replacement or rebuilding be submitted to maintain and approved by Mortgagee prior furnish to the commencement of Landlord general liability builders' risk, and such other insurance and in such amounts as may from time to time be required by the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration mayLandlord against other insurable hazards which, at the option time are commonly insured against in the case of Mortgageedemolition of existing building and improvements, be applied either on account and construction of a new building and improvements. No destruction of or damage to the Indebtedness then most remotely demised premises or any part thereof by fire or any other casualty shall permit Tenant to be paid in inverse chronological ordersurrender this Lease or shall relieve Tenant from its liability to pay the full rent and additional rent and other charges or Impositions payable under this Lease or from any of its other obligations under this Lease, without a prepayment feeand Tenant waives any rights now or hereafter conferred upon it by statute or otherwise to quit or surrender this Lease or the demised premises or any part thereof, or be paid to any person suspension, diminution, abatement or persons otherwise entitled thereto. Application or release reduction of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed rent on account of any such destruction or damage, except to the extent to which the Landlord shall have received and retained a net sum as proceeds or other funds held of any rent insurance. In the event that the Tenant erects any new building and improvements in accordance with the hands provisions of Mortgagee or this Lease, all of the disbursing partyprovisions of this Lease with respect to the obligations of the Tenant in connection with any building and improvements on the demised premises shall apply with equal force and effect to such new building and improvements.
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Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to or destruction of any improvements on In the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of event the improvements on the Mortgaged Property. Howeverdemised premises are damaged or destroyed, if Mortgagee then Lessee shall require that repair and restore the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement owned by Lessor and this lease shall continue in full force and effect and Lessee shall commence such repair or rebuilding with reasonable diligence and shall prosecute and complete such repair and rebuilding with reasonable diligence, provided, however, that any delay in the completion of said repairs resulting from fire or other casualty, strikes, shortages of material or labor, governmental laws, rules and regulations, the improvements on elements or matters beyond the Mortgaged Property reasonable control of Lessee shall extend the time within which Lessee may complete said repairs or rebuilding by the period of such delay. There shall be to a condition no abatement of at least equal value as prior to rental by reason of such damage or destruction or the time required to repair or rebuild. The net proceeds of any insurance maintained in force at the expense of Lessee, with the proceeds thereof payable to Lessor or any encumbrancer shall, except for any portion thereof required by any encumbrancer to pay current installments due on any encumbrance, be made available to Lessee to be applied to the cost and expense of repair or rebuilding the damage or destruction insured, subject to reasonable conditions and payable on the usual architect's. certificates, but Lessor or any encumbrancer holding said insurance proceeds may withhold until completion and the expiration of the period exist an amount reasonably necessary to insure completion of such repairs or destruction, and . Any amount required to complete such repair or rebuilding in excess of the insurance proceeds payable to Lessee hereunder shall be paid by Lessee before such insurance proceeds are used. If said net proceeds of insurance are not made available to Lessee as herein provided within thirty days after written demand therefor served upon Lessor or any encumbrancer holding said proceeds, Lessee may terminate this Lease and be released from its obligation to further repair or rebuild. The preceding sentence shall not apply to any portion of said insurance proceeds which may be withheld by Lessor or any encumbrancer until expiration of the period within which mechanics' or materialmen's liens may be filed as hereinbefore provided, unless and until the said period for liens has expired and the written demand provided for herein shall be made available therefor served upon Lessor and any encumbrancer holding said insurance proceeds or any part thereof. The option of Lessee to terminate this Lease after said thirty day written demand may be exercised only if the funds demanded are properly then due Lessee under the conditions and in the manner set forth belowterms of this Lease. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceedsLessor, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out term of said insurance proceeds after payment this Lease, shall not be required to make any expenditures whatsoever in connection with this Lease, including the work of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid repair specified in inverse chronological order, without a prepayment feeExhibit "B", or be paid to make any person alterations or persons otherwise entitled thereto. Application or release of proceeds under repairs to maintain the provisions hereof shall not cure or waive demised premises in any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in way during the hands of Mortgagee or the disbursing partyterm hereof.
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Damage or Destruction. Mortgagor will give Mortgagee prompt notice In the event the Premises shall be damaged due to fire, the elements, unavoidable accident or other casualty, Landlord shall provide Tenant with an estimate of the time period required to repair or restore the Premises and shall then cause the damage to the Premises (not including Tenant's betterments or destruction improvements) to be repaired or restored with due diligence to substantially the same condition as existed immediately prior to such damage, and this Lease shall continue in full force and effect, subject to any abatement rights of any improvements on Tenant provided herein; provided, however, that Landlord shall not be required to expend in such repair more than the Mortgaged Property proceeds of insurance recovered or recoverable with respect to personal property used in such damage (i.e., the operation full replacement cost of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”Premises). Any expenses incurred by Mortgagee in Tenant shall upon written notice from Landlord promptly restore, replace or repair Tenant's betterments and improvements to the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to Premises and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely other property items required to be paid, without a prepayment fee, or insured by Tenant pursuant to Section 4.3 hereof. If the cost of rebuilding restoring the Premises (not including Tenant's betterments or restoration improvements) to their condition prior to damage shall exceed the amount recoverable in any insurance policies carried by Landlord, or if the Premises are damaged by any casualty not insured against, Landlord, in the event Tenant elects (in writing) not to make such repairs, shall have the right to terminate this Lease by giving Tenant written notice of its election to do so within thirty (30) days after the date on which the damage occurs, whereupon this Lease shall terminate as of the improvements date on which the Mortgaged Propertydamage occurred and all rent payable hereunder shall be equitably adjusted as of said date. HoweverIn the event Landlord fails to give such notice, if Mortgagee this Lease shall require that continue, and Landlord shall cause the improvements on the Mortgaged Property Premises (not including Tenant's betterments and improvements) to be repaired or rebuilt, then and restored with due diligence to substantially the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a same condition of at least equal value as existed immediately prior to such damage or destructiondamage, and such net proceeds of insurance Tenant shall promptly restore, replace or repair Tenant's betterments and improvements to the Premises and other property items required to be made available therefor under insured by Tenant pursuant to Section 4.3 hereof. If Tenant is unable to reasonably occupy the conditions and in the manner set forth below. So premises following a casualty, as long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insuredspremises was not caused by the Tenant's gross negligence or willful misconduct, such insurance proceeds, after deducting expenses incurred in collection, the Tenant's obligation to pay rent under this Lease shall be made available under axxxx during the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements period Tenant is unable to conduct its business on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyPremises.
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage (a) If, prior to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation full payment of the Mortgaged Property Series 2024 Taxable Bonds and any Parity Bonds or prior to provision for payment thereof having been made in case accordance with the provisions of loss covered by policies of insurancethe Resolution, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor any building or the lessees under any lease of other facility constituting any portion of the Mortgaged Property (“Lease” Projects is destroyed or “Leases”). Any expenses incurred damaged by Mortgagee in fire or other casualty to such extent as to require the collection repair, rebuilding, or replacement thereof, the Lessee will continue to make the payments of Basic Rent and Additional Rent required hereby, and all proceeds of insurance proceeds, together with interest thereon resulting from the date of claim for any such expense at loss, after deducting therefrom the highest default rate set forth legal and other expenses, if any, incurred in the Notesobtaining such proceeds, shall be added paid to and become held by the Lessee in a part of separate trust account, whereupon the Indebtedness and shall be reimbursed by Mortgagor Lessee will proceed promptly to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgageerepair, upon rebuild or in reduction of restore the Indebtedness then most remotely property damaged or destroyed to be paid, without a prepayment fee, or substantially the same condition as existed prior to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to event causing such damage or destruction, with such changes, alterations, and modifications, including the substitution and addition of other property, as may be desired by the Lessee unless the Lessee determines that such replacement or repair is not in the best interest of the Lessee. If such property is to be repaired, rebuilt, or restored, the Lessee will apply so much as may be necessary of such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification to payment of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, costs of such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the replacement or repair, restorationeither on completion thereof or, at the Lessee’s option, as the work progresses. In the event such net proceeds are not sufficient to pay in full the cost of such rebuilding, replacement or rebuilding repair, the Lessee will pay that portion of improvements on the Mortgaged Property costs thereof in excess of the amount of such net proceeds. The Lessee will not, by reason of the payment of such excess costs, be entitled to a condition any reimbursement or to any abatement or diminution of at least equal value as existed prior to such damage or destruction. Otherwise, the rents payable hereunder.
(b) Any balance of such net proceeds may be applied by Mortgageeremaining after payment of all the costs of such repair, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological orderrebuilding or restoration, or to the cost of if it shall be determined that such repair, rebuilding or restoration is not in the best interest of the Mortgaged Property or personal property. HoweverLessee, if Mortgagee shall require then and in that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, event all of such net proceeds of insurance shall be made available therefor under paid into the conditions Sinking Fund and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the Lessee’s option of Mortgageeand to the extent practicable, be used for the payment of Bonds as provided in the Resolution or may be applied either on account against payments of Basic Rent. If all Bonds payable from the Indebtedness Sinking Fund and the interest thereon shall have been paid or if sufficient funds will, under the provisions of this subsection, be placed in the Sinking Fund for the payment and defeasance of all Bonds payable from the Sinking Fund, then most remotely to be paid in inverse chronological orderthe excess, without a prepayment feeif any, or of such proceeds over the amount required for such payment and defeasance shall be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyLessee.
Appears in 1 contract
Samples: Lease Contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice (a) Subject to the provisions of subsection (b) below, Buyer shall be bound to purchase the Property for the Purchase Price as required by the terms of this Agreement without regard to the occurrence during the Contract Period of any damage to or destruction of the Improvements ("Contract Period Damage"). Buyer shall receive a credit in escrow in the amount of any improvements deductible under Seller's insurance policies and any insurance proceeds (net of reasonable costs incurred in securing such proceeds) collected by Seller prior to the Closing Date as a result of any Contract Period Damage and not expended by Seller on repair, replacement or restoration of the Mortgaged Property pursuant to subsection (c) below. Seller promptly shall deliver to Buyer any such insurance proceeds as shall be collected by Seller following the Closing Date.
(b) Notwithstanding the foregoing, if the cost of repair, replacement or restoration of the Property attributable to any Contract Period Damage exceeds $100,000.00, either party may elect to terminate this Agreement by written notice to the other given not more than ten (10) days following notice to Buyer of the event of damage or destruction and not later than one day prior to the Closing Date. If the Contract Period Damage arises out of an uninsured risk, Seller shall elect, by written notice given within such 10-day period, either to terminate this Agreement or to personal property used close escrow as contemplated in this Agreement with a reduction in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or Purchase Price equal to the cost of rebuilding repair, replacement or restoration of the improvements on the Mortgaged Property. HoweverUpon termination of this Agreement pursuant to this paragraph, if Mortgagee the Deposit shall require that be returned to Buyer. In the improvements on event neither party timely elects to terminate this Agreement pursuant to this subsection, the Mortgaged provisions of subsection (a) above shall be applicable.
(c) Upon the occurrence of any Contract Period Damage, Seller may, but shall not be obligated to, use any insurance proceeds collected with respect to such Contract Period Damage to repair, replace or restore the Property be repaired or rebuilt, then to the extent reasonably feasible prior to the Closing Date. Seller's election to commence the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property prior to the Closing Date shall in no way imply that Seller has made any representation or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt warranty with respect to any work performed in accordance connection with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding restoration ("Seller's Repairs"). The plans, materials, choice of contractor and all other material aspects of the improvements on the Mortgaged Property performance of Seller's Repairs shall be disbursed from time subject to time Buyer's review and approval (provided no default exists which shall not be unreasonably withheld) and to the general disclaimer set forth in Section 2.3 above. In the event that Buyer does not approve any aspect of Seller's Repairs in writing within five (5) days following Seller's request for such approval, Seller may, at its option, terminate this Agreement by written notice delivered to Buyer on or before the Closing Date.
(d) Notwithstanding anything in this Agreement to the contrary, the insurance proceeds to be credited or in any of delivered to Buyer pursuant to this Section 7.1 shall exclude business interruption or rental loss insurance proceeds, if any, allocable to the Instruments or any Lease at period through the time of each disbursement)Closing Date, after first deducting the expenses of disbursement includingwhich proceeds shall be retained by Seller.
(e) If, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion Closing Date, there shall be any condemnation or eminent domain proceedings instituted or pending against any part of the Property, then Buyer may elect to terminate this Agreement by written notice given to Seller and the Title Company within ten (10) days after Buyer has received notice from Seller of such restorationproceedings. Upon such notice to Seller, repairthe Deposit shall be returned to Buyer, replacement and upon such return, this Agreement shall terminate and be null and void and of no further force or rebuilding shall exceed ninety percent effect. Failure of Buyer to notify Seller and the Title Company within said ten (90%10) of the value of the work performed from time days that Buyer has elected to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purposeterminate this Agreement, shall be sufficient in deemed to mean that Buyer has elected not to terminate this Agreement. If Buyer does not so elect to terminate this Agreement, then the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement transaction contemplated herein shall take place as provided herein without abatement of the work. Any surplus Purchase Price, and there shall be paid or assigned to Buyer on the Closing Date all interest of Seller in and to any condemnation awards which have been or may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either payable to Seller on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyoccurrence.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Metric Income Trust Series Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice Tenant shall take good care of the Premises and shall return the same at the expiration or earlier termination of such lease agreement in as good order as received ordinary wear and depreciation excepted, unless the Premises should be destroyed by lightning or other natural causes, or fire proven not to be caused by the negligence or fault of Tenant or Tenant's agents, servants, employees or licensees. If any destruction proven to be without fault of Tenant occurs during the term of such lease agreement, the following shall apply:
(1) If the Premises are partially damaged by fire or other casualty without fault of Tenant, but not rendered wholly untenantable, as determined solely by NFTA, the same shall be repaired with due diligence by NFTA at NFTA's sole cost and expense, and Tenant's rent shall be abated in proportion to the untenantable portion for the period from the occurrence of the damage to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation completion of the Mortgaged Property and in case of loss covered repairs.
(2) If the Premises are completely destroyed by policies of insurancefire or other casualty, Mortgagee is hereby authorized to make proof of loss if not promptly made or so damaged that they shall remain untenantable for more than ninety (90) days, as determined solely by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceedsNFTA, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, NFTA shall be added under no obligation to repair or reconstruct the same and become a part of the Indebtedness and rent payable shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or proportionately paid to the cost time of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. OtherwiseNFTA shall notify Tenant within thirty (30) days of the occurrence of such casualty whether repair or reconstruction of the Premises shall be accomplished. If NFTA elects to repair or reconstruct, it shall commence and prosecute such repair or reconstruction with due diligence. Should NFTA elect not to repair or reconstruct, such net proceeds may be applied by Mortgageelease agreement shall terminate upon the date of such notification; provided however, in such eventuality NFTA agrees to use its sole discretion, upon and in reduction of the Indebtedness then most remotely best efforts to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal provide substitute space for Tenant at a suitable NFTA property. HoweverIn the event substitute space is provided and accepted by Tenant, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the all terms and conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding lease agreement shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled apply thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.
Appears in 1 contract
Samples: Lease Agreement (NanoDynamics, Inc.)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee (a) Provided that there is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no uncured Event of Default (as defined below) hereunder: (i) Grantor shall have the absolute right with respect to any damage to the Mortgaged Property resulting in the Loan Agreementa claim against Grantor's insurance in an amount under Two Hundred Fifty Thousand Dollars ($250,000), and (ii) Grantor and Mortgagee in all other cases shall both have the right, to participate in the settlement, adjustment or compromise of any claims for loss or destruction under any policy or policies of insurance. Subject to the provisions of Subsection 5(c) below, the insurance loss proceeds shall be delivered to Mortgagee and be applied, subject to the terms herein, without penalty or premium, to the outstanding Obligations which are then due and payable under any of the Transaction Documents, unless Mortgagee elects to make such proceeds available for restoration purposes.
(b) Any proceeds not required to be used for restoration shall be applied to pay off or reduce the unpaid balance of the Obligations as hereinafter provided. Such proceeds shall, promptly after receipt by Mortgagee, be applied by Mortgagee, first, to pay the actual costs, fees and expenses, if any, incurred in connection with the adjustment of the loss, and, second, to reduction of the Obligations in such order or manner as Mortgagee may, in its discretion, determine, with any excess held by it over the amount of the Obligations to be returned to Grantor or any party entitled thereto without interest.
(c) Notwithstanding anything herein to the contrary and provided that there is no uncured Event of Default, Grantor shall have the absolute right to apply the insurance proceeds for any loss valued at under Two Hundred Fifty Thousand Dollars ($250,000) to the restoration or replacement of the Improvements and or any personal property or fixtures located on the Real Property, provided that Grantor gives Mortgagee notice of the destruction and amount of damage cannotthereof. In addition, notwithstanding anything herein to the contrary, in the sole judgment event of Mortgageedestruction in an amount greater than Two Hundred Fifty Thousand Dollars ($250,000.00), result the insurance proceeds shall be applied in the termination, cancellation or modification payment of the Leases restoration or replacement of any Improvements and personal property or fixtures located on the Real Property without in any way affecting the lien of this Mortgage or the obligation of Grantor or any other person for payment of the Obligations, provided (if any)x) that there shall then be no uncured Event of Default, and if the Leases so require and the insurers do not deny liability as (y) that all such damage can, using reasonable diligence, be restored to a condition substantially equivalent to that which existed immediately prior to the insuredsoccurrence of such casualty within a reasonable time thereafter.
(d) Grantor shall, such at its sole cost and expense, and without regard to whether the insurance proceeds, after deducting expenses incurred in collection, proceeds shall be made available under the conditions and in the manner specified in the following paragraphsufficient for such purpose, for the restore, repair, restorationreplace, replacement or rebuilding of improvements on and rebuild the Mortgaged Property as nearly as possible to a its value, condition of at least equal value as existed and character immediately prior to such damage or destruction. OtherwiseIn such event, all insurance proceeds paid to Grantor on account of such net damage or destruction, less the actual costs, fees and expenses, if any, incurred in connection with adjustment of the loss, shall be released by Mortgagee to be applied to payment (to the extent of actual restoration performed) of the cost of such restoration. If the insurance proceeds are so made available by Mortgagee for restoration, any surplus which may remain out of said proceeds after payment of the cost of restoration shall, at the option of Mortgagee, be applied to the Obligations or be paid to any party entitled thereto and under the conditions that Mortgagee may require. Insurance proceeds shall be applied to the cost of restoration and released to or at the direction of Grantor pursuant to Mortgagee's standard and customary construction disbursement requirements, including without limitation as follows:
(i) Grantor shall submit to Mortgagee, promptly after the date of such damage or destruction, complete plans and specifications for the restoration. The plans and specifications shall be subject to the approval of Mortgagee. Mortgagee shall, within thirty (30) days after submission thereof, either approve the plans and specifications or serve written notice upon Grantor of disapproval thereof, setting forth Mortgagee's objections thereto.
(ii) Grantor shall submit to Mortgagee for approval a copy of all material contracts and agreements relating to the restoration.
(iii) Once a month or at any other time as may be applied agreed upon during the progress of the restoration, and upon the written request of Grantor, Mortgagee shall, from the insurance proceeds and subject to the conditions described below, pay to Grantor an amount equal to ninety percent (90%) of the payment to be made for all work done, materials supplied and services rendered in respect of such restoration during such month or other period. At the completion of the restoration, the balance of the insurance proceeds to the extent of and as required to complete the payment of the cost of Restoration shall be paid to Grantor.
(iv) Grantor shall submit to Mortgagee the following at the time of each request for an advance, which shall be conditions precedent to payment:
A. A certificate signed by Grantor and Grantor's architect or engineer (whichever is appropriate) providing that:
1. The sum then requested either has been paid by Grantor or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons who have rendered services or furnished materials for the restoration therein specified; the names and addresses of such persons, a brief description of such services and materials, the amounts so paid or due to each of said persons in respect thereto; that no part of such expenditures has been or is being made the basis, in any previous or then pending request, for the withdrawal of insurance money or has been made out of the proceeds of insurance received by Grantor; and that the sum then requested does not exceed the value of the services and materials described in the certificate.
2. Except for the sum requested in such certificate, retention payments and sums reasonably disputed by Grantor in connection with the restoration, there is no outstanding indebtedness known to the person signing such certificate, after due inquiry, for labor, wages, materials, supplies or services in connection with the restoration which, if unpaid, might become the basis of a vendor's, mechanic's, laborer's, or materialmen's statutory or similar lien upon the Mortgaged Property or any part thereof.
3. The cost, as estimated by the persons signing such certificate, to complete the restoration subsequent to the date of such certificate, does not exceed the amount of the insurance proceeds, plus any amount deposited by Grantor with Mortgagee to defray such cost and remaining in the hands of Mortgagee after payment of the sum requested in such certificate.
4. The restoration so far completed is in substantial accordance with the plans and specifications therefor and any change orders approved, in writing, by Mortgagee.
B. A title report or endorsement by a title company acceptable to Mortgagee or any other evidence reasonably satisfactory to Mortgagee showing that there has not been filed with respect to the Mortgaged Property or the Land any vendor's, mechanic's, laborer's, materialmen's or other similar lien which has not been discharged of record, except that which will be discharged by payment of the amount then requested.
(v) During the restoration, Mortgagee, and any architect, engineer or other representative whom Mortgagee may select to act on its behalf, may inspect the restoration. Grantor shall keep on the building site copies of all plans, shop drawings and specifications relating to the restoration and permit Mortgagee or its architect, engineer or other representative to examine such plans, drawings and specifications at all reasonable times, or, in the alternative, shall furnish Mortgagee with copies thereof. If during the restoration, Mortgagee or its sole discretionarchitect, engineer or other representative, determines that the materials do not substantially conform to the approved specifications or that the Mortgaged Property is not being restored in accordance with the approved plans (including any change orders approved, in writing, by Mortgagee), notice shall be given to Grantor specifying in detail the particular deficiency, omission or other respect in which it is claimed that the restoration does not conform with such plans and specifications as approved. Upon the receipt of any such notice and a copy of any report or inspection upon which such notice is based, Grantor shall take all necessary action to correct any such deficiencies, omissions or otherwise, and if necessary for the purpose of effectuating such corrections, shall immediately remove such materials, replace such construction and furnish materials in reduction accordance with such plans and specifications or with materials of the Indebtedness then most remotely equal quality as those provided for in such plans and specifications.
(e) If, while any insurance proceeds are being held by Mortgagee to be paid in inverse chronological order, or to reimburse Grantor for the cost of rebuilding or restoration of the Mortgaged Property or personal property. HoweverProperty, if an event of default shall occur under any Swap Document, Mortgagee shall require that be entitled to apply all such insurance proceeds then held by it in reduction of the Obligations in such order and manner as Mortgagee may, in its discretion, determine, and any excess held by it over the amount of the Obligations shall be returned to Grantor or any party entitled thereto without interest.
(f) If the Mortgaged Property be repaired is sold following foreclosure or rebuilt if Mortgagee acquires title to the Mortgaged Property, Mortgagee shall have all the right, title and interest of Grantor in accordance with this Agreement, such net and to any proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on resulting from any damage to the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement sale or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyacquisition.
Appears in 1 contract
Samples: Isda Master Agreement (Associated Estates Realty Corp)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice 13.1 In the event of damage to or destruction during the Development Period to any of any the improvements on upon the Mortgaged Property Leased Premises, Tenant shall have the obligation to utilize insurance proceeds as and when available to rebuild or to personal property used repair the improvements unless otherwise agreed by the City. During the Development Period, in the operation of event that the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized cost to make proof of loss if not promptly made by Mortgagor or rebuild the lessees under any lease of any portion of Parking Garage exceeds the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon City and Tenant agree to use good faith efforts to arrive at a mutually agreeable solution to addressing this additional cost. During the Operation Period (a) Tenant shall have the obligation to utilize insurance proceeds as and when available to rebuild or repair the Project Land Improvements and any insurance proceeds from any casualty loss shall be applied to the date repair or rebuilding unless otherwise agreed by the City, and (b) as described in the Parking Lease Agreement (as defined in Section 35.1 hereof), City shall have the obligation to utilize insurance proceeds as and when available to rebuild or repair the Garage Land Improvements and any insurance proceeds from any such casualty loss shall be applied to the repair or rebuilding unless otherwise agreed by the Tenant. In the event of damage or destruction to both the Project Land Improvements and the Garage Land Improvements during the Operation Period, the City’s obligation to restore the Garage Land Improvements is conditioned upon the contemporaneous satisfaction of the Tenant’s obligation to restore the Project Land Improvements and the Tenant’s obligation to restore the Project Land Improvements is conditioned upon the contemporaneous satisfaction of the City’s obligation to restore the Garage Land Improvements. During the Development Period (as to the Garage Land Improvements and the Project Land Improvements) and the Operation Period (as to the Project Land Improvements only), the City shall have no obligation to repair or rebuild the improvements or any fixtures, equipment or other personal property installed by Tenant pursuant to this Agreement; however, upon the failure of Tenant to repair or rebuild as required by this Agreement, the City may, as agent of Tenant, repair or rebuild such damage or destruction at the expense of Tenant, and such expense at the highest default rate set forth in the Notes, shall be added due and payable on demand.
13.2 Upon completion of all repair or rebuilding work to be done by Tenant hereunder as a result of damage or destruction, Tenant shall certify by a responsible officer or authorized representative that such rebuilding and become a part repairs have been completed. Nothing herein contained shall be deemed to release Tenant from any of its repair, maintenance or rebuilding obligations under this Agreement.
13.3 In no event shall Tenant be obligated to provide improvements, equipment and fixtures in excess of those existing prior to such damage or destruction or as required by City Code, whichever is greater. Tenant agrees that such work will promptly commence and proceed to completion with due diligence.
13.4 Tenant shall not be entitled to any abatement, allowance, reduction, or suspension of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon rent payments as a result of or in reduction of connection with the Indebtedness then most remotely to be paid, without a prepayment fee, partial or to the cost of rebuilding or restoration total destruction of the improvements on the Mortgaged PropertyProject Land. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to No such damage or destruction, and such net proceeds of insurance destruction shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or affect in any way the obligation of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, Tenant to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans Rent and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partycharges contained herein.
Appears in 1 contract
Samples: Ground Lease
Damage or Destruction. Mortgagor will give Mortgagee prompt (a) Promptly, and in any case within five (5) Business Days after the occurrence thereof, Loan Parties shall notify Agent of any fire or other Casualty with respect to any portion of the Premises with an estimated claims value in excess of $250,000. Such notice also shall generally describe the nature and extent of damage such Casualty. Promptly upon the same becoming available, Loan Parties shall deliver to Agent Loan Parties’ best estimate of the cost of Restoration.
(b) Agent shall be entitled to receive all insurance proceeds payable on account of a Casualty in excess of the Casualty Threshold (for the avoidance of doubt, it is understood that all proceeds payable on account of a Casualty in excess of the Casualty Threshold shall be deposited with Agent, not merely the portion of such proceeds which exceeds the Casualty Threshold). Subject to the terms hereof, each Loan Party hereby irrevocably assigns, transfers and sets over to Agent all of such Loan Party’s right to any such insurance proceeds, award or payment. Loan Parties hereby irrevocably authorize and empower Agent, in the name of Loan Parties or otherwise, to file for and prosecute in its own name what would otherwise be Loan Parties’ claim for any such insurance proceeds. Notwithstanding the foregoing, so long as no Event of Default shall have occurred and shall then be continuing and provided Loan Parties promptly file all claims and diligently prosecute same, and subject to the terms of the Ground Lease, Loan Parties shall have the right to file, adjust, settle and prosecute any claim for such insurance proceeds; provided, however, that Loan Parties shall not agree to any adjustment or settlement of any such claim payable with respect to a Casualty the insurance proceeds with respect to which are greater than the Casualty Threshold without the prior consent of the Requisite Lenders, which consent shall not be unreasonably withheld, conditioned or delayed. Loan Parties shall within ten (10) days after demand pay to Agent all documented, reasonable out-of-pocket costs and expenses (including the fee of any insurance consultant or adjuster and reasonable attorneys’ fees and disbursements) incurred by Agent in connection with a Casualty and seeking and obtaining any insurance proceeds, award or payment with respect thereto. Net Proceeds held by Agent, together with any interest earned thereon, shall constitute additional security for the payment of the Obligations (a security interest therein being granted hereby), until the earlier of the disbursement of such Net Proceeds and interest in accordance with this Section 6.12 or the satisfaction of the Obligations (other than Contingent Obligations).
(c) Loan Parties shall, at the sole cost and expense of Loan Parties, promptly commence and diligently and continually perform to completion the Restoration in a good and workmanlike manner and in compliance with all Legal Requirements and the requirements of the Permitted Encumbrances which, if not complied with is reasonably likely to result in a Material Adverse Effect, whether or not Loan Parties shall have satisfied the requirements of Section 6.12(d) in order to cause the Net Proceeds to be made available for such Restoration and whether or not such insurance proceeds on account of the Casualty shall be sufficient for such purpose.
(d) In the case of any Casualty with respect to which the insurance proceeds payable are less than the Casualty Threshold and provided that no Event of Default shall then exist, the Net Proceeds shall be held by Loan Parties to be applied and used for the Restoration. If the insurance proceeds are equal to or destruction greater than the Casualty Threshold, the Net Proceeds shall be held by Agent, if Agent so elects, in an interest bearing account, as a part of the Collateral and shall be applied by Agent as follows:
(i) Subject to the terms of the Ground Lease, the Net Proceeds shall be made available to reimburse Loan Parties for the costs of Restoration or to be applied directly to such costs provided that the following conditions are satisfied (each a “Release Condition” and collectively, the “Release Conditions”):
(A) no Event of Default shall have occurred and be continuing;
(B) the loss is in an aggregate amount less than twenty-five percent (25%) of the outstanding principal amount of the Loan (or such higher amount agreed to by the Requisite Lenders in their sole and absolute discretion);
(C) the Ground Lease shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of such Casualty;
(D) Loan Parties shall have demonstrated to the reasonable satisfaction of Agent that the Restoration can be completed at least six (6) months prior to the scheduled Maturity Date, or such earlier time as may be required by applicable Legal Requirements;
(E) Loan Parties shall have demonstrated to the reasonable satisfaction of Requisite Lenders that sufficient funds are available to Loan Parties through rent and/or business interruption insurance maintained pursuant to this Loan Agreement, cash and/or a Letter of Credit or other similar cash-equivalent security reasonably satisfactory to Agent as to form, content and issuer, and which shall be for the benefit of Agent, to pay any improvements on anticipated shortfall in Debt Service with respect to the Loan or operating expenses with respect to the Mortgaged Property or during the period reasonably estimated by Loan Parties as necessary for the completion of the Restoration;
(F) to personal property used the extent, in the operation Requisite Lenders’ reasonable and good faith judgment, the Net Proceeds are insufficient to pay the costs of the Restoration, Loan Parties shall have provided Agent with a Letter of Credit, cash deposit or similar equivalent security in the amount of such deficiency in form and content and with an issuer reasonably satisfactory to Agent;
(G) Agent shall have been provided an Appraisal or any Appraisal Update, certifying that upon completion of the Restoration of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized the Loan-to-Value Ratio shall be equal to make proof of loss if not promptly made by Mortgagor or less than the lessees under any lease of any portion Loan-to-Value Ratio immediately preceding the subject Casualty;
(H) Agent shall have reasonably determined that upon completion of the Mortgaged Property Restoration, the Adjusted Debt Service Coverage Ratio shall not be less than the Minimum DSCR, provided that Loan Parties may provide Agent with a Letter of Credit, cash deposit or similar equivalent security in a face amount which, if deducted from the outstanding principal would cause the Adjusted Debt Service Coverage Ratio to be greater than or equal to the Minimum DSCR; and
(“Lease” I) Agent shall have received architectural plans and specifications for the Restoration and an estimate of the costs and expenses of all such Restoration, all of which shall be in form reasonably acceptable to Agent.
(ii) Notwithstanding anything to the contrary in this Section 6.12(d), if Agent (with the consent of the Requisite Lenders) does not elect to hold the Net Proceeds which it has the right to hold pursuant to Section 6.12(b) or “Leases”6.12(d). Any , Loan Parties shall not disburse any Net Proceeds other than in accordance with the conditions of this Section 6.12(d) and Sections 6.12(e) and (f).
(e) If one or more of the Release Conditions are not satisfied or otherwise waived by the Requisite Lenders within one hundred eighty (180) days (or such longer period as may be agreed to by Agent (with the consent of the Requisite Lenders) in writing) of the date of the Casualty, Net Proceeds may be applied in accordance with Section 6.12(h).
(f) All documented, reasonable out-of-pocket costs and expenses incurred by Mortgagee Agent in connection with making the collection Net Proceeds available for the Restoration (including documented, reasonable out-of-pocket attorneys’ fees and disbursements and reasonable fees and actual out-of-pocket expenses of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, Agent’s construction consultants and inspectors) shall be added to and become a part of the Indebtedness and shall be reimbursed paid by Mortgagor to Mortgagee immediately upon demandLoan Parties. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default Any Net Proceeds (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ feesany excess business interruption/rent loss proceeds) remaining after the Restoration and the payment in full of all costs incurred in connection with the Restoration shall, costs provided that no Event of title insuranceDefault shall be continuing, escrows be distributed by Agent to Loan Parties.
(g) Business interruption/rent loss insurance proceeds of Loan Parties shall be deposited into either (i) an Account or subaccount of Agent or (ii) an Account at a bank or other financial institution approved by Agent and closings shall be disbursed to Loan Parties each month in the amount equal to the proceeds allocable to such month. Loan Parties hereby grant to Agent a security interest in all rights of Loan Parties in and to such Account and all sums on deposit therein as additional security for the Obligations. Upon the occurrence and during the continuation of an Event of Default, Agent shall have the rights and remedies with respect to such Account specified in this Loan Agreement and in any other Loan Document. If held by Agent, the title company credit balance in such Account or subaccount may be commingled with the general funds of Agent. If not held by Agent, Loan Parties shall cause the bank or financial institution at which such Account is held to execute and deliver to Agent an Account Agreement with respect to such Account, Loan Parties shall pay all fees and expenses costs with respect thereto and Loan Parties shall not close such account without obtaining the prior consent of Agent, or to the extent that such closed Account is not immediately replaced with another Account which shall be subject to a security interest in favor of Agent, the Requisite Lenders. Neither Agent nor Lenders shall be liable for any loss of interest on or any penalty or charge assessed against the funds in, payable on, or credited to such Account as a result of the disbursing party, upon exercise by Agent of any of its rights or remedies hereunder or under any other Loan Document. Any interest earned on the disbursing party being provided balance of such Account shall be deposited into such account and be applied with satisfactory evidence the balance of such account in accordance with this Section 6.12(g). Agent shall have sole control over such Account subject to the terms of the cost of completion of such work and Account Agreement.
(h) Upon a Casualty, if the disposition of the diligent Net Proceeds is governed by Section 6.12(e), at the option of Requisite Lenders, the Loan shall be due and timely prosecution thereof payable upon sixty (60) days prior written notice to Loan Parties or, if earlier, the Maturity Date. Regardless of whether Agent shall so elect to accelerate the maturity of the Loan as aforesaid, Agent (with the approval of the Requisite Lenders) shall have the option to (i) make available the Net Proceeds to Loan Parties for Restoration in the manner provided in Section 6.12(d) or (ii) apply the Net Proceeds to the Obligations, in such order and with architect’s certificatesmanner as Requisite Lenders determine, waivers as the case may be, without payment of lienthe Prepayment Fee or any other prepayment premium, contractors’ and subcontractors’ sworn statements and other evidence fee or penalty (for the avoidance of costs and payments so doubt, it is agreed that the disbursing party can verify that the amounts payment of Additional Interest shall not be deemed to be a penalty or premium).
(i) With respect to any Net Proceeds which Agent is required to make available (or otherwise elects to make available in its sole discretion), such Net Proceeds shall be disbursed to Loan Parties from time to time are represented by completed in accordance with Agent’s customary and in place work reasonable construction lending practices and that said work is free and clear of all mechanics’ lien claims. No payment made prior to upon the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) receipt of the value of following, each in form and substance reasonably satisfactory to Agent:
(i) A request for disbursement signed by Loan Parties, accompanied by billing statements, vouchers or invoices, which request for disbursement shall expressly warrant that the work with respect to which the advance is requested has been or will be performed from time to time and at all times in accordance with the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that approved plans and specifications for the restoration, repair, replacement or rebuilding be Restoration;
(ii) Proof that all invoices for labor and materials previously submitted to by Loan Parties and approved and reimbursed or paid by Mortgagee prior Agent have been paid, except for those the subject of the current request for disbursement;
(iii) With respect to payments in excess of $25,000, Lien waivers for all payees under previous requests for disbursements;
(iv) If requested by Agent, a report from Loan Parties’ architect or, if Agent shall elect, Agent’s consultant, which shall specify the percentage of completion of Restoration, shall provide reasonably detailed comments on specific work performed since the date of the last such report, and, if required by Agent, an estimate of the cost to complete the Restoration after taking into account the work then completed;
(v) At the request of Agent, a title report which shall show no Liens of record (other than Permitted Encumbrances);
(vi) If requested by Agent, copies of the agreements pursuant to which the Restoration or repair shall be done, including, without limitation, any general contractor agreement, construction management agreement, architect’s agreement or material subcontract, all of which shall be in form and substance reasonably satisfactory to Agent, and which also shall be reasonably satisfactory to Agent as to the commencement party performing the construction obligations thereunder;
(vii) If requested by Agent, a collateral assignment to Agent of all construction and design-professional contracts with respect to the Restoration (which may be pursuant to the Assignment of Agreements), together with the written consent to such assignments by all parties to such contracts (which may be included in any such contract); and
(viii) If requested by Agent, such other information and documentation as Agent may reasonably and in good faith request regarding the Improvements and the Restoration and the cost thereof.
(j) Notwithstanding anything to the contrary contained in this Section 6.12, in the event of any conflict between the provisions of this Section 6.12 and the Ground Lease with respect to the payment or application of Net Proceeds, the provisions of the workGround Lease shall control. Any surplus which may remain out In amplification of said insurance proceeds after payment of the foregoing sentence, the Net Proceeds shall be applied to the costs of building Restoration to the extent required by the Ground Lease; provided that (i) the Release Conditions (C), (F) and restoration may, at (I) set forth in Section 6.12(d) have been satisfied and (ii) the option disbursement of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest Net Proceeds shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.subject to Section 6.12
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice In the event the Premises shall be damaged due to fire, the elements, unavoidable accident or other casualty, Landlord shall provide Tenant with an estimate of the time period required to repair or restore the Premises and shall then cause the damage to the Premises (not including Tenant's betterments or destruction improvements) to be repaired or restored with due diligence to substantially the same condition as existed immediately prior to such damage, and this Lease shall continue in full force and effect, subject to any abatement rights of any improvements on Tenant provided herein; provided, however, that Landlord shall not be required to expend in such repair more than the Mortgaged Property proceeds of insurance recovered or recoverable with respect to personal property used in such damage (i.e., the operation full replacement cost of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”Premises). Any expenses incurred by Mortgagee in Tenant shall upon written notice from Landlord promptly restore, replace or repair Tenant's betterments and improvements to the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to Premises and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely other property items required to be paid, without a prepayment fee, or insured by Tenant pursuant to Section 4.3 hereof. If the cost of rebuilding restoring the Premises (not including Tenant's betterments or restoration improvements) to their condition prior to damage shall exceed the amount recoverable in any insurance policies carried by Landlord, or if the Premises are damaged by any casualty not insured against, Landlord, in the event Tenant elects (in writing) not to make such repairs, shall have the right to terminate this Lease by giving Tenant written notice of its election to do so within thirty (30) days after the date on which the damage occurs, whereupon this Lease shall terminate as of the improvements date on which the Mortgaged Propertydamage occurred and all rent payable hereunder shall be equitably adjusted as of said date. HoweverIn the event Landlord fails to give such notice, if Mortgagee this Lease shall require that continue, and Landlord shall cause the improvements on the Mortgaged Property Premises (not including Tenant's betterments and improvements) to be repaired or rebuilt, then and restored with due diligence to substantially the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a same condition of at least equal value as existed immediately prior to such damage or destructiondamage, and such net proceeds of insurance Tenant shall promptly restore, replace or repair Tenant's betterments and improvements to the Premises and other property items required to be made available therefor under insured by Tenant pursuant to Section 4.3 hereof. If Tenant is unable to reasonably occupy the conditions and in the manner set forth below. So premises following a casualty, as long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insuredspremises was not caused by the Tenant's gross negligence or willful misconduct, such insurance proceeds, after deducting expenses incurred in collection, the Tenant's obligation to pay rent under this Lease shall be made available under axxxx during the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements period Tenant is unable to conduct its business on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyPremises.
Appears in 1 contract
Damage or Destruction. Upon the occurrence of any damage or casualty to the Secured Property or any part thereof, the following shall apply:
(1) Mortgagor will shall give Mortgagee prompt written notice of such damage or casualty as soon as possible, but not later than ten (10) days after the date such damage or casualty occurs.
(2) All proceeds of insurance (“Proceeds”) paid or to be paid pursuant to any of the policies maintained pursuant to this Mortgage shall be payable to Mortgagee. Mortgagor hereby authorizes and directs any affected insurer to make payment of the Proceeds directly to Mortgagee. Mortgagee may commingle, with other monies in Mortgagee’s possession, all Proceeds received by Mortgagee. All such Proceeds shall constitute additional security for the Obligations and Mortgagor shall not be entitled to the payment of interest thereon. So long as no Event of Default then exists, Mortgagor may settle, adjust or compromise all claims for loss, damage or destruction of pursuant to any improvements on the Mortgaged Property policy or to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insuranceinsurance provided that such claim does not exceed $1,000,000.00.
(3) Mortgagee shall have the option, Mortgagee is hereby authorized in its discretion, and without regard to make proof the adequacy of loss if not promptly made by Mortgagor its security hereunder, of applying all or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and Proceeds to (a) the Obligations, whether or not then due, in such order as Mortgagee shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgageedetermine in accordance with applicable law, upon or in reduction of (b) the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding repair or restoration of the improvements on Secured Property, (c) reimburse Mortgagee for its actual costs and expenses in connection with the Mortgaged Property. Howeverrecovery of the Proceeds, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired any, or rebuilt, then the repair, restoration, replacement or rebuilding (d) any combination of the improvements on the Mortgaged Property foregoing.
(4) Nothing herein contained shall be deemed to a condition of at least equal value excuse Mortgagor from repairing or maintaining the Secured Property as prior to such provided in Section 1.05 or restoring all damage or destructiondestruction to the Secured Property, regardless of whether there are Proceeds available or whether the Proceeds are sufficient in amount, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss application or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved release by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof Proceeds shall not cure or waive any Event of Default or notice of default hereunder pursuant to this Mortgage or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partynotice.
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Damage or Destruction. Mortgagor will give Mortgagee prompt notice Until the Closing, the Acquired Assets shall remain at the risk of the Sellers. In the event of (i) any material damage to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation of the Mortgaged Property Acquired Assets after the date hereof and prior to the Closing (in case any such case, a “Damage or Destruction Loss”) or (ii) any sale or other transfer out of loss an Acquired Store (other than to another Acquired Store) of any Equipment located in an Acquired Store as of the date hereof (an “Equipment Loss”) the Seller shall give notice thereof to the Buyer promptly thereafter. If any such Damage or Destruction Loss is covered by policies of insurance and the underlying Acquired Asset is not repaired or replaced prior to Closing, all right and claim of the Sellers to any proceeds of insurance for such Damage or Destruction Loss shall be assigned and (if previously received by the Sellers and not used prior to the Closing Date to repair any damage or destruction) paid to the Buyer at Closing in accordance with Section 2.1(i). If any such Damage or Destruction Loss is not covered by policies of insurance, Mortgagee is hereby authorized the Buyer shall have the right to make proof of loss reduce the Credit Bid Consideration by an amount equal to (i) if such Affected Assets are not promptly made by Mortgagor destroyed or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to damaged beyond repair and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely are able to be paid, without a prepayment fee, or repaired to substantially the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require same condition that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage Damage or destruction. OtherwiseDestruction Loss at a cost less than their replacement cost, the estimated cost to repair or restore the Acquired Assets affected by such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of Damage or Destruction Loss (the Indebtedness then most remotely “Affected Assets”) to be paid in inverse chronological order, or to substantially the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require same condition that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made existed immediately prior to the final completion occurrence of such restorationDamage or Destruction Loss, repairor (ii) if such Affected Assets are destroyed or damaged beyond repair or are not able to be repaired to substantially the same condition that existed prior to such Damage or Destruction Loss at a cost less than their replacement cost, the replacement or rebuilding shall exceed ninety percent (90%) cost of the value Affected Assets. In the event of an Equipment Loss, the Buyer shall have the right to reduce the Credit Bid Consideration by an amount equal to the replacement cost of the work performed from time applicable underlying Equipment. If the Buyer elects to time reduce the Credit Bid Consideration pursuant to this Section 7.10, the Sellers and at all times the undisbursed balance Buyer shall negotiate in good faith in an effort to agree upon the amount of such proceeds remaining in reduction. If the hands Parties are unable to reach agreement within five (5) Business Days after notice of the disbursing partyDamage or Destruction Loss or Equipment Loss is given by the Sellers, together with funds deposited for then the purpose or irrevocably committed for such purpose, amount of the reduction shall be sufficient in determined by an independent, qualified insurance adjuster selected by the reasonable judgment Parties (or, if they are unable to agree on such selection, one appointed by the Bankruptcy Court upon application of Mortgagee, to pay for either the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee Buyer or the disbursing partySellers).
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Damage or Destruction. Mortgagor will If, during the term, the premises or the improvements or fixtures thereon are destroyed or damaged in whole or in part by fire or other cause, lessee shall give Mortgagee Lessor immediate notice, and Lessee, at its own cost and expense, shall cause the prompt notice repair, replacement and rebuilding of same ("restoration"), subject without limitation to Sections 5.2 and 5.3 of this Lease. Lessor shall in no event be called upon to repair, replace or rebuild any such buildings, fixtures or personalty, nor to pay any of the costs or expenses thereof beyond or in excess of any insurance proceeds made available to Lessee under this Lease. All insurance proceeds on account of such damage to or destruction shall be applied to pay or reimburse Lessee for the payment of any the cost of restoration of the building and other leasehold improvements on the Mortgaged Property premises, including the cost of temporary repairs or for the protection of the premises pending the completion of permanent restoration. In the event of substantial damage (hereinafter defined), Twenty Five Thousand Dollars ($25,000.00) of the insurance proceeds shall be disbursed by the insurer directly into an escrow account with an escrowee reasonably acceptable to personal property used Lessor and Lessee, with such sum to be distributed to Lessee upon the furnishing of proof reasonably satisfactory to Lessor of lien free completion of the restoration, but to be distributed to lessor upon any default by Lessee with respect to the restoration (such escrow amount in no way to limit Lessee's liability for any such default). If the insurance proceeds and other funds deposited with Lessor or the applicable mortgage, less the actual cost, fees and expenses, if any, incurred in connection with the adjustment of the loss, are insufficient to pay the entire cost of the restoration, Lessee will pay the deficiency. During restoration, Lessee shall continue the operation of its business within the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or premises to the cost of rebuilding extent practicable, this Lease shall terminate, nor shall rental and other charges payable under this Lease be abated or restoration of affected in any manner. Notwithstanding the foregoing in this Section 5.8, if the building and other leasehold improvements on the Mortgaged Property. However, if Mortgagee premises shall require that the improvements on the Mortgaged Property be repaired substantially damaged (fifty percent (50%) or rebuilt, then the repair, restoration, replacement or rebuilding more of the improvements on the Mortgaged Property shall be to a condition of at least equal insurable value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any)building) or destroyed by fire, and if windstorm, or otherwise, within the Leases so require and last year of the insurers do not deny liability term of this Lease, as same may be extended pursuant to Section 2.2, either party shall have the right to terminate this Lease, provided that notice thereof is given to the insureds, such insurance proceeds, other party not later than sixty (60) days after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. OtherwiseIf said right of termination is exercised, such net proceeds may be applied by Mortgagee, in its sole discretion, upon this Lease and in reduction the term hereof shall cease and come to an end as of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion date of such work damage or destruction and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said herein referenced insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely shall belong solely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyLessor.
Appears in 1 contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice Until the Closing, the Purchased Assets shall remain at the risk of the Selling Entities. In the event of any material damage to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation of the Mortgaged Property Purchased Asset listed on Schedule 7.16 after the date hereof and prior to the Closing (in case of loss any such case, a “Damage or Destruction Loss”), the Seller shall give notice thereof to the Buyer. If any such Damage or Destruction Loss is covered by policies of insuranceinsurance and is not repaired or replaced by a similar facility in reasonable proximity to any former facility, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion all right and claim of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection Selling Entities to any proceeds of insurance proceeds, together with interest thereon from the date of for such expense at the highest default rate set forth in the Notes, Damage or Destruction Loss shall be added to assigned and become a part of (if previously received by the Indebtedness Selling Entities and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or not used prior to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be Closing Date to a condition of at least equal value as prior to such repair any damage or destruction, and ) paid to the Buyer and/or a Buyer Designee at Closing in accordance with Section 2.1(q). If any such net proceeds Damage or Destruction Loss is not covered by policies of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event (not considering any deductible payable with respect to any policy of Default (as defined in the Loan Agreementinsurance), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in Buyer shall have the termination, cancellation or modification of right to reduce the Leases (if any), and if the Leases so require and the insurers do not deny liability as Closing Payment by an amount equal to the insuredslesser of (i) the estimated cost to repair or restore the Purchased Assets affected by such Damage or Destruction Loss (the “Affected Assets”) to substantially the same condition that existed immediately prior to the occurrence of such Damage or Destruction Loss, or (ii) if such insurance proceeds, after deducting expenses incurred in collection, shall Affected Assets are destroyed or damaged beyond repair or are not able to be made available under repaired to substantially the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a same condition of at least equal value as that existed prior to such damage Damage or destruction. OtherwiseDestruction Loss at a cost less than their replacement cost, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction the replacement cost of the Indebtedness then most remotely to be paid Affected Assets for a similar facility in inverse chronological order, or reasonable proximity to the cost of rebuilding or restoration former facility, and the amount of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either Closing Payment reduction on account of such Damage or Destruction Loss shall be retained by the Indebtedness then most remotely Sellers. If the Buyer elects to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under reduce the provisions hereof shall not cure or waive any default hereunder or invalidate any act done Closing Payment pursuant to any this Section 7.16, the Seller and the Buyer shall negotiate in good faith in an effort to agree upon the amount of such reduction. If the parties are unable to reach agreement within five (5) Business Days after notice of default. No interest the Damage or Destruction Loss is given by the Selling Entities, then the amount of the reduction shall be allowed determined by an independent, qualified insurance adjuster selected by the Parties (or, if they are unable to agree on account such selection, one appointed by the Bankruptcy Court upon application of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyeither Party).
Appears in 1 contract
Samples: Asset Purchase Agreement (Eddie Bauer Holdings, Inc.)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice In the event of any damage to or destruction of to the Premises by fire or other cause during the term hereof, the following provisions will apply:
a. If the Building is damaged by fire or any improvements on the Mortgaged Property or other cause to personal property used in the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to extent that the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement as estimated by Landlord, will equal or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety twenty-five percent (9025%) of the replacement value of the work performed from time Building (exclusive of foundations) just prior to time and at all times the undisbursed balance of such proceeds remaining in the hands occurrence of the disbursing partydamage, together with funds deposited then Landlord may, not later than the thirtieth (30th) day following the damage, give Tenant written notice of Landlord’s election to terminate this Lease.
b. If the cost of restoration as estimated by Landlord will equal or exceed twenty-five percent (25%) of said replacement value of the Building and if the Premises are not suitable as a result of said damage for the purpose or irrevocably committed purposes for such purposewhich they are demised hereunder, shall be sufficient in the reasonable judgment opinion of MortgageeLandlord, then Tenant may, no later than the thirtieth (30th) day following the damage, give Landlord a written notice of election to pay for terminate this Lease.
c. If the cost of completion restoration as estimated by Landlord amounts to less than twenty-five percent (25%) of said replacement value of the Building, or if, despite the cost, neither Landlord nor Tenant elects to terminate this Lease, Landlord will restore the Building and the Premises with reasonable promptness, subject to delays beyond Landlord’s control and delays in the making of insurance adjustments by Landlord; and Tenant will have no right to terminate this Lease except as herein provided. Landlord will not be responsible for restoring or repairing leasehold improvements of the Tenant.
d. In the event of either of the elections to terminate, this Lease will be deemed to terminate on the date of the receipt of the notice of election and all such restoration, repair, replacement or rebuildingrentals will be paid up to that date. Mortgagee may require that plans and specifications Tenant will have no claim against Landlord for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior value of any unexpired term of this Lease.
e. In any case where damage to the commencement Building materially affects the Premises so as to render them unsuitable in whole or in part for the purposes for which they are demised hereunder, then, unless such destruction was wholly or partially caused by the negligence or breach of the work. Any surplus which may remain out terms of said insurance proceeds after payment of costs of building and restoration maythis Lease by Tenant, at the option of Mortgageeits employees, be applied either on account contractors or licensees, a portion of the Indebtedness then most remotely rent based upon the amount of the extent to which the Premises are rendered unsuitable will be paid in inverse chronological orderabated until repaired or restored. If the destruction or damage was wholly or partially caused by negligence or breach of the terms of this Lease by Tenant as aforesaid and if Landlord elects to rebuild, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall rent will not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in axxxx and the hands of Mortgagee or Tenant will remain liable for the disbursing partysame.
Appears in 1 contract
Samples: Commercial Lease (Aetrium Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice In the event the leased Premise are destroyed or damaged by fire, cyclone, flood or other storm, explosion, earthquake or other casualty from any cause (“Casualty Event”) so as to render the Leased Premise unfit for use and occupancy in Landlord’s reasonable judgement, then Landlord may elect either to (i) repair or rebuild and put the Leased Premise in good condition and fit for occupancy within one hundred eighty (180) days after the Casualty Event, or (ii) terminate this Lease, Landlord shall notify Tenant within thirty (30) days of damage the Casualty Event of Landlord’s intention to repair or destruction of any improvements on the Mortgaged Property rebuild or to terminate this Lease. If Landlord elects to repair or rebuild, it shall proceed with reasonable diligence to restore the Leased Premise to substantially the same condition in which they were immediately prior to the Casualty Event. Tenant shall be responsible for the installation of Tenant’s furniture, equipment and other personal property used in property. If Landlord elects to terminate this Lease, then this Lease shall terminate effective as the operation of the Mortgaged Property and in case of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion date of the Mortgaged Property Casualty Event, and Rent and other charges payable by Tenant shall be adjusted as such date. If Landlord fails to repair or rebuild and put the Leased Premise in good condition and fit for occupancy within one hundred eighty (180) days after the Casualty Event (the “Lease” or “LeasesReconstruction Period”). Any expenses incurred Tenant may terminate this Lease by Mortgagee giving written notice of such termination within thirty (30) days after the expiration of the Reconstruction Period. If Xxxxxx fails to give notice of termination within said thirty (30) day period, this Lease shall continue. Provided, however, if Landlord is delayed in the collection commencement or progress of insurance proceedsthe work of repair and rebuilding by the act or omission of Tenant or Tenant’s employees or contractors, together with interest thereon from or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties and other causes beyond Landlord’s control, the Reconstruction Period shall be extended by the number of days Landlord is delayed. Tenant shall have the right to terminate this Lease in the event (i) Landlord notifies Tenant that it cannot restore or repair the Leased Premise after a Casualty Event within one hundred eighty (180) days following the date of such expense at the highest default rate set forth in Casualty, or (ii) Landlord fails to restore or repair the Notes, shall be added to and become leased Premise after a part Casualty Event within one hundred eighty (180) days following the date of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by MortgageeCasualty, upon or in reduction (iii) such Casualty occurs during the last year of the Indebtedness then most remotely to be paid, without a prepayment fee, original Lease term or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided during any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyrenewal Term.
Appears in 1 contract
Samples: Lease Agreement
Damage or Destruction. Mortgagor will give Mortgagee prompt notice If any of the Improvements shall be destroyed or damaged prior to the Closing, and if either the estimated cost of repair or replacement exceeds Two Hundred Fifty Thousand Dollars ($250,000.00) or the damage to or destruction of any improvements on the Mortgaged Property or to personal property used results in the operation termination of one or more of the Mortgaged Property and in case Leases, Purchaser may, by written notice given to Seller within twenty (20) days after receipt of loss covered by policies written notice from Seller of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, elect to terminate this Agreement, in which event the Xxxxxxx Money shall immediately be returned by Escrow Agent to Purchaser and such net proceeds the rights, duties, obligations, and liabilities of insurance all parties hereunder shall immediately terminate and be made available therefor under of no further force or effect. If Purchaser does not elect to terminate this Agreement pursuant to this Paragraph 18, or has no right to terminate this Agreement (because the conditions damage or destruction does not exceed $250,000.00 and has not resulted in the manner set forth below. So long as there exists no Event termination of Default (as defined in one or more of the Loan AgreementLeases), and provided any loss the sale of the Property is consummated, Purchaser shall be entitled to receive all insurance proceeds paid or payable to Seller by reason of such destruction or damage cannot, under the insurance required to be maintained by Seller pursuant to Paragraph 9 hereof (less amounts of insurance theretofore received and applied by Seller to costs actually incurred for restoration). Seller shall not settle or release any damage or destruction claims without obtaining Purchaser’s prior written consent in each case. All said insurance proceeds received by Seller by the sole judgment date of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, Closing shall be made available under paid by Seller to Purchaser at Closing, together with the conditions and in lesser of (i) that amount necessary to cover any difference between the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance amount of such proceeds remaining in and the hands estimated cost of repair or replacement, or the amount of the disbursing partydeductible under Seller’s all-risk property damage insurance policy. In addition, together with funds deposited at Closing, Seller shall pay over to Purchaser, and assign to Purchaser, all proceeds of any rent loss insurance for the purpose or irrevocably committed for such purpose, shall be sufficient in period of time commencing on the reasonable judgment date of Mortgagee, to pay for Closing. If the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out amount of said casualty or rent loss insurance proceeds after payment is not settled by the date of costs Closing, Seller shall execute at Closing all proofs of building loss, assignments of claim, and restoration mayother similar instruments in order that Purchaser receive all of Seller’s right, at the option of Mortgageetitle, be applied either on account of the Indebtedness then most remotely to be paid and interest in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds and under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partysaid insurance proceeds.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Investment Trust Ii Inc)
Damage or Destruction. Mortgagor (A) DAMAGE AND REPAIR: If the Building is damaged by fire or any other cause to such extent that the cost of restoration, as reasonably estimated by Landlord, will equal or exceed thirty percent (30%) of the replacement value of the Building (exclusive of foundations) just prior to the occurrence of the damage, or if insurance proceeds sufficient for restoration are for any reason unavailable, then Landlord may no later than the sixtieth day following the damage, give Mortgagee prompt Tenant a notice of damage election to or destruction terminate this Lease. In the event of any improvements such election, this Lease shall be deemed to terminate on the Mortgaged Property third day after the giving of said notice, and Tenant shall surrender possession of the Premises within a reasonable time thereafter, and the Rent and Additional Rent shall be apportioned as of the date of said surrender and any Rent and Additional Rent paid for any period beyond such date shall be repaid to Tenant. If the cost of restoration as estimated by Landlord shall amount to less than thirty percent (30%) of said replacement value of the Building and insurance proceeds sufficient for restoration are available, or if Landlord does not elect to personal property used terminate this Lease, Landlord shall restore the Building and the Premises (to the extent of improvements to the Premises originally provided by Landlord hereunder) with reasonable promptness, subject to delays beyond Landlord's control and delays in the operation making of insurance adjustments by Landlord, and Tenant shall have no right to terminate this Lease except as herein provided. To the Mortgaged Property extent that the Premises are rendered untenantable, the Rent and in case Additional Rent shall proportionately abatx. Xx damages, compensation or claim shall be payable by Landlord for inconvenience, loss of loss covered by policies of insurance, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor business or the lessees under annoyance arising from any lease repair or restoration of any portion of the Mortgaged Property (“Lease” Premises or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, shall be added to and become a part of the Indebtedness and Building. Landlord shall be reimbursed by Mortgagor use its best efforts to Mortgagee immediately upon demandeffect such repairs promptly. Such net proceeds may be applied by MortgageeNOTWITHSTANDING THE PROVISIONS OF SECTION 13(a) TO THE CONTRARY, upon or in reduction of the Indebtedness then most remotely to be paidWITHIN SIXTY (60) DAYS FOLLOWING THE DATE OF SUCH DAMAGE OR DESTRUCTION, without a prepayment feeLANDLORD SHALL GIVE NOTICE TO TENANT OF THE ESTIMATED DATE FOR COMPLETION OF SUCH REPAIRS WITH RESPECT TO THE PREMISES OR THE BUILDING. IF RESTORATION OF TENANT'S PREMISES OR THE BUILDING IS REASONABLY ESTIMATED TO EXCEED 180 DAYS FROM THE DATE OF THE CASUALTY, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. HoweverTHEN FOLLOWING TENANT'S RECEIPT OF THE ESTIMATED RESTORATION DATE, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyTENANT SHALL HAVE THE OPTION TO TERMINATE THIS LEASE BY GIVING LANDLORD WRITTEN NOTICE OF TERMINATION WITHIN 30 DAYS FOLLOWING THE RECEIPT OF SUCH NOTICE BY TENANT FROM LANDLORD; SUCH TERMINATION TO BE EFFECTIVE 30 DAYS FOLLOWING LANDLORD'S RECEIPT OF SUCH TERMINATION NOTICE FROM TENANT.
Appears in 1 contract
Samples: Lease Agreement (Realnetworks Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage If prior to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation full payment of the Mortgaged Property and Notes the Project is destroyed (in case of loss covered whole or in part) or is damaged by policies of insurancefire or other casualty, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor or the lessees under any lease of any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee in the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, Lessee shall be added obligated to continue to pay Rentals, to perform its other obligations and become a part of covenants hereunder and to repair, rebuild or restore the Indebtedness and shall be reimbursed by Mortgagor property damaged or destroyed to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgagee, upon or in reduction of substantially the Indebtedness then most remotely to be paid, without a prepayment fee, or same condition as existed prior to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to event causing such damage or destruction, with such changes, alterations and such net proceeds modifications (including the substitution and addition of insurance shall other property) as may be made available therefor under desired by the conditions Lessee and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage canwill not, in the sole judgment opinion of MortgageeIndependent Counsel, result change the character of the Project to such an extent that it ceases to be a "project" under the Act or (so long as the SIDA Bonds shall be outstanding) the SIDA Act. The Lessee may apply for such purpose so much as may be necessary of any Net Proceeds of insurance resulting from claims for such losses. In the event said Net Proceeds are not sufficient to pay in full the costs of such repair, rebuilding or restoration, the Lessee will nonetheless complete the work thereof and will pay that portion of the costs thereof in excess of the amount of said proceeds. The Lessee shall not, by reason of the payment of such excess costs, be entitled to any reimbursement from the IDB or any abatement or diminution of the Rentals payable hereunder. Any balance of insurance proceeds remaining after payment of all the costs of such repair, rebuilding or restoration shall be paid to the Lessee. Notwithstanding the foregoing, if the Lessee shall determine that such repair, restoration or rebuilding is not, in whole or in part, economically viable, then the Lessee may elect to prepay one or more of the Notes in accordance with their terms, in which case the Net Proceeds (or such portion thereof as is allocable to the portion of the Project not being repaired, restored or rebuilt) shall be applied to such prepayment; provided, however, that if the SIDA Bonds shall at the time bear interest at a Yearly Fixed Rate or the Permanent Fixed Rate (both as therein defined), then such prepayment may occur only if the preconditions set forth therein for extraordinary optional redemption thereof shall have been met. The IDB shall cooperate fully with the Lessee in the terminationhandling of any prospective or pending insurance claim with respect to the Project or any part thereof. In no event will the IDB voluntarily settle, cancellation or modification consent to the settlement of, any prospective or pending insurance claim with respect to the Project or any part thereof without the written consent of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by MortgageeLessee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.
Appears in 1 contract
Samples: Lease Agreement (Simcala Inc)
Damage or Destruction. Mortgagor will give Mortgagee prompt notice of damage (a) If, prior to or destruction of any improvements on the Mortgaged Property or to personal property used in the operation full payment of the Mortgaged Property and Bonds or prior to provision for payment thereof having been made in case accordance with the provisions of loss covered by policies of insurancethe 2019A Resolution, Mortgagee is hereby authorized to make proof of loss if not promptly made by Mortgagor any building or the lessees under any lease of other facility constituting any portion of the Mortgaged Property (“Lease” 2019A Project is destroyed or “Leases”). Any expenses incurred damaged by Mortgagee in fire or other casualty to such extent as to require the collection repair, rebuilding, or replacement thereof, the Lessee will continue to make the payments of Basic Rent and Additional Rent required hereby, and all proceeds of insurance proceeds, together with interest thereon resulting from the date of claim for any such expense at loss, after deducting therefrom the highest default rate set forth legal and other expenses, if any, incurred in the Notesobtaining such proceeds, shall be added paid to and become held by the Lessee in a part of separate trust account, whereupon the Indebtedness and shall be reimbursed by Mortgagor Lessee will proceed promptly to Mortgagee immediately upon demand. Such net proceeds may be applied by Mortgageerepair, upon or in reduction of the Indebtedness then most remotely to be paid, without a prepayment feerebuild, or restore the property damaged or destroyed to substantially the same condition as existed prior to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to event causing such damage or destruction, with such changes, alterations, and modifications, including the substitution and addition of other property, as may be desired by the Lessee unless the Lessee determines that such replacement or repair is not in the best interest of the Lessee. If such property is to be repaired, rebuilt, or restored, the Lessee will apply so much as may be necessary of such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification to payment of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, costs of such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the replacement or repair, restorationeither on completion thereof or, replacement or rebuilding of improvements on at the Mortgaged Property to a condition of at least equal value Lessee’s option, as existed prior to such damage or destructionthe work progresses. Otherwise, In the event such net proceeds may be applied by Mortgagee, are not sufficient to pay in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to full the cost of rebuilding such rebuilding, replacement, or restoration repair, the Lessee will pay that portion of the Mortgaged Property costs thereof in excess of the amount of such net proceeds. The Lessee will not, by reason of the payment of such excess costs, be entitled to any reimbursement or personal property. However, if Mortgagee shall require that to any abatement or diminution of the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, rents payable hereunder.
(b) Any balance of such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, without limitation, reasonable attorneys’ fees, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of all the costs of building such repair, rebuilding, or restoration, or if it shall be determined that such repair, rebuilding, or restoration is not in the best interest of the Lessee, then and restoration in that event all of such net proceeds shall be paid into the Sinking Fund and may, at the Lessee’s option of Mortgageeand to the extent practicable, be used for the payment of Bonds as provided in the 2019A Resolution or may be applied either on account against payments of Basic Rent. If all Bonds payable from the Indebtedness Sinking Fund and the interest thereon shall have been paid or if sufficient funds will, under the provisions of this subsection, be placed in the Sinking Fund for the payment and defeasance of all Bonds payable from the Sinking Fund, then most remotely to be paid in inverse chronological orderthe excess, without a prepayment feeif any, or of such proceeds over the amount required for such payment and defeasance shall be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing partyLessee.
Appears in 1 contract
Samples: Lease Contract
Damage or Destruction. Mortgagor will give Mortgagee prompt notice 4.15.1 In the event of any damage to or destruction of the Premises for which the cost of repair might reasonably be expected to exceed $500,000, Mortgagor shall, promptly after obtaining knowledge of the occurrence thereof, give notice thereof to Mortgagee and shall, regardless of the dollar amount of such damage, proceed with reasonable diligence, at Mortgagor's sole cost and expense, to repair and restore or cause to be repaired or restored the Premises or the portion thereof so damaged as nearly as practically possible to the condition the same were in immediately prior to such damage. If any improvements Personal Property is damaged or lost as a result of such fire or other casualty, Mortgagor shall likewise, at its sole cost and expense, whether or not any insurance proceeds are available or adequate for such purpose, replace or cause to be replaced the Personal Property so damaged or lost. In the event that Mortgagor fails to advance any funds required for the completion of any such repairs or restoration, Mortgagee may, but shall not be obligated to, advance the required funds or any portion thereof, and Mortgagor shall, on demand, reimburse Mortgagee for all sums advanced and actual expenses incurred by Mortgagee in connection therewith, together with interest thereon at the Mortgaged Property or to personal property used Default Rate (as defined in the operation Note) from the date each such advance is made to the date of receipt by Mortgagee of reimbursement from Mortgagor, which amounts and interest shall become part of the Secured Obligations and be secured hereby. All repairs and restoration required to be made by Mortgagor hereunder shall be performed in material compliance with all Laws and Orders and shall be without any liability or actual expense of any kind to Mortgagee. Notwithstanding the foregoing, Mortgagor should not be obligated to repair, restore or replace the Premises and/or Personal Property in the event that (i) Mortgagee requires (pursuant to clause (A) of Section 4.15.2(ii)) the application of insurance proceeds to the payment of Secured Obligations at a time when no Event of Default has occurred and is continuing or (ii) Mortgagor elects not to restore pursuant to Section 4.15.2(iii).
4.15.2 If by reason of any damage or destruction, any insurance proceeds are paid under any insurance policy maintained pursuant to subsection 4.14.1 hereof or otherwise (other than business interruption insurance proceeds or, as the case may be, rental loss insurance proceeds, which shall be paid as provided in clause (iii) of subsection 4.14.1), such proceeds shall be paid as follows:
(i) If the aggregate insurance proceeds received by reason of any single instance of damage or destruction shall not exceed $500,000, such insurance proceeds shall be paid over to Mortgagor, and Mortgagor shall hold the same as a trust fund, to be used first for the payment of the entire cost of repairing and restoring the Premises and/or Personal Property and the balance thereof shall be paid to the Mortgagor; provided, however, that, if any Event of Default shall exist hereunder at the time all such insurance proceeds are so to be paid over to Mortgagor, or if Mortgagee shall have accelerated the Secured Obligations, all such insurance proceeds (in whatever amount) shall be paid over to Mortgagee and not to Mortgagor for application pursuant to clause (B) below.
(ii) If the aggregate insurance proceeds received by reason of any single instance of damage or destruction shall exceed $500,000, such insurance proceeds shall be paid over to Mortgagee and held in an interest-bearing account. The Mortgagee shall apply such insurance proceeds to the repair and restoration of the Mortgaged Property by disbursing the same to Mortgagor on a periodic basis and with such retainage (not to exceed 10%) as Mortgagee reasonably shall deem appropriate, but no more frequently than monthly, as the repair and restoration work progresses, upon receipt by Mortgagee of such guaranties of completion (from Mortgagor and/or other third parties acceptable to Mortgagee), surety bonds, requisitions, architect's certificates and title updates as Mortgagee shall in its good faith discretion require (including without limitation requiring Mortgagor, inter alia, to provide to Mortgagee for its approval appropriate plans and specifications and budgets, and to show that there are at all times sufficient funds (in addition to the available insurance proceeds, as the case may be) available for the completion of loss covered the repair and restoration in question and to pay all amounts due under this Mortgage and the Note during such repair and restoration). All amounts held by policies Mortgagee as retainage shall be paid to Mortgagor upon substantial completion of insurancethe repair and restoration work. If any excess proceeds shall remain after the repair and restoration work has been completed and paid for in full out of such insurance proceeds, such excess proceeds shall be paid to Mortgagor if the Premises have been restored to their condition prior to such change or destruction, but otherwise such excess proceeds shall be retained by Mortgagee and applied to the partial prepayment of the Note, at par. Interest earned on insurance proceeds while held by Mortgagee shall be added to the amount of such insurance proceeds. If while any such insurance proceeds are held by Mortgagee an Event of Default shall have occurred and be continuing or Mortgagee shall have accelerated the Secured Obligations, Mortgagee is hereby authorized shall have no duty to make proof advances to Mortgagor as provided for in this clause (ii).
4.15.3 No destruction of loss if not promptly made or damage to the Mortgaged Property, or any part thereof, by fire or other casualty whatsoever, whether such damage or destruction be partial or total or otherwise, shall relieve Mortgagor from its liability to pay in full as and when due the Secured Obligations, or from timely, fully and faithfully performing all its other obligations hereunder and under the lessees under any lease Loan Documents. No application of insurance proceeds to the reduction of the Secured Obligations shall have the effect of releasing the lien of this Mortgage from all or any portion of the Mortgaged Property (“Lease” or “Leases”). Any expenses incurred by Mortgagee until and unless all of the Secured Obligations have been paid in full.
4.15.4 For so long as the collection of insurance proceeds, together with interest thereon from the date of such expense at the highest default rate set forth in the Notes, Tenant Lease shall be added in effect and not in default, if and to and become a part the extent that the provisions of the Indebtedness and shall be reimbursed by Mortgagor to Mortgagee immediately upon demand. Such net proceeds may be applied by MortgageeTenant Lease are inconsistent with the provisions of this Section 4.15, upon or in reduction such provisions of the Indebtedness then most remotely to be paidTenant Lease shall govern, without a prepayment fee, or to the cost of rebuilding or restoration of the improvements on the Mortgaged Property. However, if Mortgagee shall require that the improvements on the Mortgaged Property be repaired or rebuilt, then the repair, restoration, replacement or rebuilding of the improvements on the Mortgaged Property shall be to a condition of at least equal value as prior to such damage or destruction, and such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. So long as there exists no Event of Default (as defined in the Loan Agreement), and provided any loss or damage cannot, in the sole judgment of Mortgagee, result in the termination, cancellation or modification of the Leases (if any), and if the Leases so require and the insurers do not deny liability as to the insureds, such insurance proceeds, after deducting expenses incurred in collection, shall be made available under the conditions and in the manner specified in the following paragraph, for the repair, restoration, replacement or rebuilding of improvements on the Mortgaged Property to a condition of at least equal value as existed prior to such damage or destruction. Otherwise, such net proceeds may be applied by Mortgagee, in its sole discretion, upon and in reduction of the Indebtedness then most remotely to be paid in inverse chronological order, or to the cost of rebuilding or restoration of the Mortgaged Property or personal property. However, if Mortgagee shall require that the Mortgaged Property be repaired or rebuilt in accordance with this Agreement, such net proceeds of insurance shall be made available therefor under the conditions and in the manner set forth below. Insurance proceeds made available for restoration, repair, replacement or rebuilding of the improvements on the Mortgaged Property shall be disbursed from time to time (provided no default exists in the or in this Agreement or in any of the Instruments or any Lease at the time of each disbursement), after first deducting the expenses of disbursement including, including without limitation, reasonable attorneys’ feesthat if the tenant under the Tenant Lease is required to restore the Premises under the Tenant Lease, costs of title insurance, escrows and closings by the title company and fees and expenses of the disbursing party, upon the disbursing party being provided with satisfactory evidence of the cost of completion of such work and of the diligent and timely prosecution thereof and with architect’s certificates, waivers of lien, contractors’ and subcontractors’ sworn statements and other evidence of costs and payments so that the disbursing party can verify that the amounts disbursed from time to time are represented by completed and in place work and that said work is free and clear of all mechanics’ lien claims. No payment made prior to the final completion of such restoration, repair, replacement or rebuilding Mortgagee shall exceed ninety percent (90%) of the value of the work performed from time to time and at all times the undisbursed balance of such make insurance proceeds remaining in the hands of the disbursing party, together with funds deposited for the purpose or irrevocably committed available for such purpose, shall be sufficient in the reasonable judgment of Mortgagee, to pay for the cost of completion of all such restoration, repair, replacement or rebuilding. Mortgagee may require that plans and specifications for the restoration, repair, replacement or rebuilding be submitted to and approved by Mortgagee prior to the commencement of the work. Any surplus which may remain out of said insurance proceeds after payment of costs of building and restoration may, at the option of Mortgagee, be applied either on account of the Indebtedness then most remotely to be paid in inverse chronological order, without a prepayment fee, or be paid to any person or persons otherwise entitled thereto. Application or release of proceeds under the provisions hereof shall not cure or waive any default hereunder or invalidate any act done pursuant to any notice of default. No interest shall be allowed on account of any such proceeds or other funds held in the hands of Mortgagee or the disbursing party.
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Samples: Leasehold Mortgage and Security Agreement (Sepracor Inc /De/)
