Insurance Proceeds and Condemnation Awards. (a) Subject to Section 4.4 hereof, the amounts received by or payable to the Mortgagee from time to time which constitute insurance proceeds in respect of any damage to or destruction or condemnation of the Mortgaged Property or any part thereof, condemnation awards or compensation covering the Mortgaged Property (less the actual costs, fees and expenses incurred in the collection thereof), proceeds from the Special Risk Policy shall be held by the Mortgagee as part of the Mortgaged Property and shall be applied by the Mortgagee as follows: (i) if a casualty occurs which results in a termination of the Lease, or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 of this Mortgage, such proceeds, award or compensation, as the case may be, shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to the date of payment upon the terms and in the manner provided in Section 2.12 of this Mortgage, and the balance, if any, of any such proceeds shall be paid to the Company; or (ii) if a casualty or condemnation occurs which does not result in the termination of the Lease and the Company or the Tenant shall be required to repair, rebuild or restore the Mortgaged Property as required pursuant to the Lease, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee to the Company (or as the Company may direct from time to time) upon a written application of the Company and accompanied by such evidence in reasonable detail as may be satisfactory to the Mortgagee supporting such application for the purpose of paying, or reimbursing the Company for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding or restoring part or all of the Mortgaged Property damaged, destroyed or taken (“Restoration”), but only for and to the extent that the Company shows by such evidence of costs that the proceeds, award or compensation (“Restoration Funds”) remaining on deposit with the Mortgagee, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee for such purpose, shall be sufficient to complete such Restoration and restore the Mortgaged Property (as nearly as practicable) at least to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment of such proceeds, award or compensation shall state that no Event of Default has occurred and is continuing. Any proceeds in excess of the amount needed for Restoration remaining after the Restoration has been completed shall be (i) if the amount of rent payable under the Lease has been reduced as a result of such condemnation or casualty, such amounts shall be held by the Mortgagee and at the option of the Mortgagee either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default is then existing, such amounts shall be disbursed to the Company. The Mortgagee shall receive a supplement hereto sufficient, as insured by appropriate title insurance acceptable to the Beneficiary. (b) Subject to Section 2.15(b) hereof with respect to adjustments of losses, any appraisal or adjustment of such loss or any settlement or payment of indemnity therefor which shall be agreed upon between the Company and the relevant insurance company shall be accepted by the Mortgagee.
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Samples: Mortgage Agreement (Blue Ridge Real Estate Co), Mortgage, Security Agreement, Assignment of Leases and Rents, and Fixture Filing Statement (Blue Ridge Real Estate Co)
Insurance Proceeds and Condemnation Awards. (a) Subject All proceeds of fire and extended coverage insurance and of condemnation awards covering the Mortgaged Property equal to Section 4.4 hereof, the amounts or in excess of $100,000 received by or payable to the Mortgagee from time to time which constitute under the provisions of this Mortgage and/or the Indenture or any instruments supplemental hereto or thereto, or under any policy or policies of insurance proceeds in respect of any damage to or destruction or condemnation of covering the Mortgaged Property or any part thereof, condemnation awards or compensation covering the Mortgaged Property (less the actual costs, fees and expenses incurred in the collection thereof), proceeds from the Special Risk Policy shall be held by the Mortgagee as part of the Mortgaged Property and shall be applied by the Mortgagee as follows:
(i) if a casualty occurs which results in a termination If the total amount of the Lease, any one loss or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 of this Mortgage, such proceeds, award or compensationtaking, as the case may be, shall be applied in payment equal or exceed $100,000 and satisfaction the cost of rebuilding or restoring the Mortgaged Property (as evidenced by an Officers' Certificate of the outstanding Mortgagor detailing the same) shall be less than the proceeds of insurance or the award or consideration received on account of condemnation or other taking of the Mortgaged Property, the Mortgagor shall prepay the Notes pursuant to Section 5.3 of the Indenture in a principal and amount equal to such excess, together with interest accrued interest on the Note Notes to be prepaid to the date of payment and a premium equal to the Yield-Maintenance Premium, upon the terms and in the manner provided in Section 2.12 5.3 of this Mortgage, the Indenture and the balance, if any, of any such proceeds shall be paid released to or upon the Companyorder of the Mortgagor in accordance with clause (ii) below. Any application of moneys pursuant to this section 4.1(a)(i) shall be made by the Mortgagor within 60 days after the completion of the rebuilding or restoration of the Mortgaged Property; orand
(ii) if a casualty If the total amount in the case of any one loss or condemnation occurs which does not result in or taking, as the termination of the Lease and the Company case may be, shall equal or the Tenant shall be required to repairexceed $100,000, rebuild or restore the Mortgaged Property as required pursuant to the Lease, all casualty insurance such proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee to the Company (or as the Company may direct Mortgagor from time to time) time upon a written application signed by the President and any Vice President of the Company Mortgagor and accompanied by such evidence in reasonable detail as may be satisfactory to an approving certificate of an architect or engineer selected by the Mortgagee supporting such application Mortgagor and approved by the Mortgagee, for the purpose of paying, or reimbursing the Company Mortgagor for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding repairing or restoring replacing part or all of the Mortgaged Property damaged, destroyed property damaged or taken (“Restoration”)destroyed, but only if written application is made therefor within 12 months of the receipt of such proceeds by the Mortgagee, and then only for and to the extent that hat the Company Mortgagor shows by such architect's or engineer's certificates or other evidence of costs satisfactory to the Mortgagee that the proceeds, award or compensation (“Restoration Funds”) portion of such proceeds remaining on deposit with the Mortgagee, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee for such purpose, shall be sufficient to complete such Restoration repairs or replacements and restore the Mortgaged Property (as nearly as practicable) at least possible to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except this Mortgage and Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment of such proceeds, award insurance or compensation condemnation moneys shall state that no Default or Event of Default has occurred and is continuing. Any proceeds in excess continuing and shall be accompanied by date down endorsement to the lender's title insurance policy being delivered pursuant to Section 7(a)(iv) of the amount needed Note Agreement insuring that, as the date of such payment, the property will be subject to the lien of this Mortgage as a first lien thereon subject only to Permitted Encumbrances. The Mortgagor will remain solely responsible for Restoration remaining after the Restoration has been completed shall be rebuilding, restoration or substitution of the Mortgaged Property, whether or not the proceeds of insurance maintained in accordance with the provisions hereof are sufficient therefor.
(ib) if In cases involving insurance proceeds where the amount of rent payable under the Lease has been reduced as a result of such condemnation or casualty, such amounts shall be held by the Mortgagee any one loss is less then $100,000 and at the option of the Mortgagee either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default is then existingshall have occurred and be continuing under this Mortgage, the amount payable in respect of any such amounts loss will be received by the Mortgagee and shall be disbursed by the Mortgagee paid over immediately to the Company. The Mortgagee shall receive a supplement hereto sufficient, as insured Mortgagor for use by appropriate title insurance acceptable to the BeneficiaryMortgagor in paying for replace or repair of or substitutes for the damages or destroyed property.
(bc) Subject to Section 2.15(bsection 2.6(c) hereof with respect to adjustments of losses, any appraisal or adjustment of such loss or any settlement or payment of indemnity therefor which shall be agreed upon between the Company Mortgagor and the relevant insurance company shall be accepted by the Mortgagee.
(d) In the vent the insurance moneys or condemnation award, as the case may be, shall not have been applied to one or more of the purposes specified in section 4.1(a) hereof within the 12-month period provided for thereby, then the Mortgagee shall apply such insurance moneys or condemnation award, as the case may be, to the prepayment, with premium, of the Notes together with interest accrued thereon in an amount sufficient to exhaust such cash as nearly as may be upon giving the Mortgagor 10 days' advance notice of its intent so to do, such prepayment to be made in units of $1,000 but otherwise to be made ratably on all outstanding Notes in accordance with the principal amounts unpaid thereon, together with interest accrued thereon and a premium equal to the Yield-Maintenance Premium; any balance remaining after such prepayment to be released to the Mortgagor. Partial prepayments made pursuant to this section 4.1(d) shall be paid and applied upon the terms and in the manner provided in Section 5 of the Indenture.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Ramsay Health Care Inc)
Insurance Proceeds and Condemnation Awards. (a) Subject to Section 4.4 hereofPromptly following the receipt thereof by the Parent or any of its Subsidiaries, the amounts received by Borrower shall deposit or payable cause to be deposited in the Cash Flow Account all of the net cash proceeds of any payment or award in excess of $250,000 made to the Mortgagee from time to time which constitute Parent or any of its Subsidiaries under any policy of property insurance proceeds in respect of covering any damage to or destruction or condemnation of the Mortgaged Property Properties or pursuant to any condemnation award with respect to any such properties. Upon delivery to the Agent of written certification by the Borrower that the Borrower or any part thereof, condemnation awards of its Subsidiaries has reasonably expended amounts or compensation covering committed in writing to expend amounts for the Mortgaged Property (less the actual costs, fees and expenses incurred in the collection thereof), proceeds from the Special Risk Policy shall be held by the Mortgagee as part restoration or replacement of the Mortgaged Property and shall be applied by the Mortgagee as follows:
(i) if a casualty occurs which results in a termination of the LeaseProperties, or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 of this Mortgage, such proceeds, award or compensation, as the case may be, shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to the date of payment upon the terms and in the manner provided in Section 2.12 of this Mortgage, and the balance, if any, of any such proceeds shall be paid to the Company; or
(ii) if a casualty or condemnation occurs which does not result in the termination of the Lease and the Company or the Tenant shall be required to repair, rebuild or restore the Mortgaged Property as required pursuant to the Lease, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee to the Company (or as the Company may direct from time to time) upon a written application of the Company and accompanied by such evidence in reasonable detail as may be satisfactory to the Mortgagee supporting such application for the purpose of paying, or reimbursing the Company for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding or restoring part or all of the Mortgaged Property damaged, destroyed or taken (“Restoration”), but only for and to the extent that the Company shows by such evidence of costs that the proceeds, award or compensation (“Restoration Funds”) remaining on deposit with the Mortgagee, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee for such purpose, shall be sufficient to complete such Restoration and restore the Mortgaged Property (as nearly as practicable) at least to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment of such proceeds, award or compensation shall state that no Event of Default has occurred and is continuing. Any proceeds in excess of specifying the amount needed for Restoration remaining after the Restoration has been completed shall be (i) if the amount of rent payable under the Lease has been reduced as a result of such condemnation expended or casualtycommitted, such amounts shall be held by the Mortgagee and at the option of the Mortgagee either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default is then existing, shall have occurred and be continuing any such amounts amount deposited in the Cash Flow Account shall be disbursed released to the Company. The Mortgagee shall receive a supplement hereto sufficientBorrower; provided, as insured by appropriate title insurance acceptable however, that, in the event that within 90 days of receipt of such payment or award, to the Beneficiary.
extent the Borrower shall not have certified to the Agent its intention to expend an equivalent amount for the restoration or replacement of the asset in respect of which such payment or award was made, the Borrower shall make a prepayment on the Loans (busing any funds deposited in the Cash Flow Account pursuant to this Section 3.2(b)(1) Subject to Section 2.15(bor other funds) hereof with respect to adjustments in the amount of losses, any appraisal or adjustment the excess of the amount of such loss payment or any settlement or payment award over the amount of indemnity therefor which such expenditures and/or commitment on such 90th day; provided, however, that if such excess is greater than the Maximum Payment Cap, only the Maximum Payment Cap shall be agreed upon between so applied, with the Company and balance to be deposited in the relevant insurance company shall be accepted by the MortgageeCash Flow Account.
Appears in 1 contract
Insurance Proceeds and Condemnation Awards. (a) Subject to Section 4.4 hereof, the amounts received by or payable to the Mortgagee Beneficiary from time to time which constitute insurance proceeds in respect of any damage to or destruction or condemnation of the Mortgaged Granted Property or any part thereof, condemnation awards or compensation covering the Mortgaged Granted Property (less the actual costs, fees and expenses incurred in the collection thereof), proceeds from the Special Risk Policy shall be held by the Mortgagee Beneficiary as part of the Mortgaged Granted Property and shall be applied by the Mortgagee Beneficiary as follows:
(i) if a casualty occurs which results in a termination of the Lease, or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company Grantor shall be required to prepay the Note pursuant to Section 2.12 of this MortgageDeed of Trust, such proceeds, award or compensation, as the case may be, shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to the date of payment upon the terms and in the manner provided in Section 2.12 of this MortgageDeed of Trust and other amounts due hereunder or under the other Operative Documents, and the balance, if any, of any such proceeds shall be paid to the CompanyGrantor; or
(ii) if a casualty or condemnation occurs which does not result in the termination of the Lease and the Company Grantor or the Tenant shall be required to repair, rebuild or restore the Mortgaged Granted Property as required pursuant to the Lease, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee Beneficiary to the Company Grantor (or as the Company Grantor may direct from time to time) upon a written application of the Company Grantor and accompanied by such evidence in reasonable detail as may be satisfactory to the Mortgagee Beneficiary supporting such application for the purpose of paying, or reimbursing the Company Grantor for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding or restoring part or all of the Mortgaged Granted Property damaged, destroyed or taken (“Restoration”), but only for and to the extent that the Company Grantor shows by such evidence of costs that the proceeds, award or compensation (“Restoration Funds”) remaining on deposit with the MortgageeBeneficiary, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee Beneficiary for such purpose, shall be sufficient to complete such Restoration and restore the Mortgaged Granted Property (as nearly as practicable) at least to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Company Grantor shall deliver to the Mortgagee Beneficiary any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment of such proceeds, award or compensation shall state that no Event of Default has occurred and is continuing. Any proceeds in excess of the amount needed for Restoration remaining after the Restoration has been completed shall be (i) if the amount of rent payable under the Lease has been reduced as a result of such condemnation or casualtycondemnation, such amounts shall be held by the Mortgagee Beneficiary and at the option of the Mortgagee Beneficiary either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company Grantor under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default is then existing, such amounts (after application to any other amounts the due hereunder or under any of the other Operative Documents) shall be disbursed to the CompanyGrantor. The Mortgagee Beneficiary shall receive a supplement hereto sufficienthereto, as insured by appropriate title insurance acceptable to the Beneficiary.
(b) Subject to Section 2.15(b) hereof with respect to adjustments of losses, any appraisal or adjustment of such loss or any settlement or payment of indemnity therefor which shall be agreed upon between the Company Grantor and the relevant insurance company shall be accepted by the MortgageeBeneficiary.
(c) The Special Risk Insurer shall have been given the right, but not the obligation, to participate as an interested party in any proceedings which may result in a Claim (as defined in the Special Risk Policy) and the Grantor shall take all actions necessary to enable the Special Risk Insurer to so participate including, without limitation, in relation to proceedings with any Governmental Entity (as defined in the Special Risk Policy) relating to the Event of Loss (as defined in the Special Risk Policy), and any award relating thereto, and in relation to any negotiations or proceedings to determine whether the Scheduled Lease Payments (as defined in the Special Risk Policy) may be abated or terminated under the Lease on account of an Event of Loss.
Appears in 1 contract
Samples: Deed of Trust, Security Agreement, Assignment of Leases and Rents (Kingsway Financial Services Inc)
Insurance Proceeds and Condemnation Awards. (a) Subject In the event of any loss or damage to Section 4.4 hereofany portion of the Property due to a Casualty, or Condemnation, if the loss or damage is greater than the Restoration Threshold, the amounts received by Mortgagor may settle and adjust insurance claims and condemnation claims and awards only with the consent of Mortgagee (which consent shall not be unreasonably withheld) and Mortgagee shall have the opportunity to participate, at Mortgagor’s cost, in any such adjustments. If (A) the loss or payable damage is less than the Restoration Threshold or (B) if the Mortgagee has the right pursuant to this Section 1.2.3 but elects not to settle such claim or award, then the Mortgagor shall have the right to settle such claim or award without the consent of the Mortgagee, provided that (1) the Mortgagor shall use the proceeds of any claim or award to the Restoration to the extent permitted by applicable law and (2) Mortgagor shall provide the Mortgagee from time to time which constitute with notice of the Casualty or Condemnation. So long as the Property remains a Collateral Asset, Borrower or Mortgagor shall use the insurance proceeds in respect of any damage to or destruction or condemnation of the Mortgaged Property or any part thereof, condemnation awards or compensation covering the Mortgaged Property (less the actual costs, fees and expenses incurred in the collection thereof), proceeds received directly from the Special Risk Policy insurance company to the Restoration to the extent permitted by applicable law. The Mortgagee shall be held by have the Mortgagee as part of right to settle any claim or award that the Mortgaged Property and shall be applied by the Mortgagee as follows:
(i) if a casualty occurs which results in a termination of the Lease, Mortgagor has not settled on or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 of this Mortgage, such proceeds, award or compensation, as the case may be, shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to before one year after the date of payment upon the terms applicable Casualty or Condemnation. The Mortgagee shall have the right (but not the obligation) to collect, retain and apply to the Obligations all Net Proceeds in the manner provided in Section 2.12 of this Mortgage, and the balance, if any, of any such proceeds shall be paid to the Company; or
(ii) if a casualty or condemnation occurs which does not result in the termination of the Lease and the Company or the Tenant shall be required to repair, rebuild or restore the Mortgaged Property as required pursuant to the Lease, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee to the Company (or as the Company may direct from time to time) upon a written application of the Company and accompanied by such evidence in reasonable detail as may be satisfactory to the Mortgagee supporting such application for the purpose of paying, or reimbursing the Company for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding or restoring part or all of the Mortgaged Property damaged, destroyed or taken (“Restoration”), but only for and to the extent event that the Company shows by such evidence of costs that the proceeds, award or compensation (“Restoration Funds”) remaining on deposit with the Mortgagee, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee for such purpose, shall be sufficient to complete such Restoration and restore the Mortgaged Property (as nearly as practicable) at least to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment of such proceeds, award or compensation shall state that no an Event of Default has occurred and is continuing. Otherwise, all proceeds shall be delivered to Mortgagor. Any proceeds in excess of the amount needed for Restoration Net Proceeds remaining after application to the Restoration has been completed Obligations shall be (i) if paid by Mortgagee to Borrower or the amount of rent payable under the Lease has been reduced as a result of such condemnation or casualty, such amounts shall be held by the Mortgagee and at the option of the Mortgagee either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest party then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default is then existing, such amounts shall be disbursed to the Company. The Mortgagee shall receive a supplement hereto sufficient, as insured by appropriate title insurance acceptable to the Beneficiaryentitled thereto.
(b) Subject to Section 2.15(b) hereof with respect to adjustments of losses, any appraisal or adjustment of such loss or any settlement or payment of indemnity therefor which shall be agreed upon between the Company and the relevant insurance company shall be accepted by the Mortgagee.
Appears in 1 contract
Samples: Term Loan Agreement (Hospitality Investors Trust, Inc.)
Insurance Proceeds and Condemnation Awards. If, prior to the payment in full or satisfaction of the Obligations (or provisions for payment thereof having been made in accordance with the provisions hereof and of the Agreement) the Mortgaged Property, or any part or component thereof, shall be damaged, lost or destroyed, by whatever cause, except as provided in paragraphs 9 and 10 hereof, or if any public authority or entity, in the exercise of its power of eminent domain, takes or damages the Mortgaged Property, or any part or component thereof, there shall be no abatement or reduction in the amounts payable by the Mortgagor under the Agreement, or the Obligations payable under this Mortgage, and all of the insurance proceeds (whether payable from the policies of insurance described in paragraph 16 above or from other policies of insurance carried by the Mortgagor or third parties), and any award or compensation resulting from such taking or damage by condemnation shall be applied as follows:
(a) Subject The Net Proceeds of the insurance carried pursuant to Section 4.4 hereofthe provisions of paragraph 16(c) hereof shall, if such Net Proceeds exceed $50,000, be applied by the Borrower toward extinguishment of the defect or claim or satisfaction of the liability with respect to which such insurance proceeds may be paid.
(b) The Net Proceeds of the insurance carried with respect to the Mortgaged Property pursuant to the provisions of paragraphs 16(a), (b) and (d) hereof and all other casualty insurance required hereunder (excluding the Net Proceeds of any business interruption insurance, which shall be paid to the Mortgagor so long as no Default exists), and the Net- Proceeds resulting from eminent domain, shall be paid to Mortgagee. The Mortgagor shall, at the election of the Mortgagee, call for redemption Bonds in the amount of such Net Proceeds and the Net Proceeds shall be used to reimburse the Mortgagee for draws to redeem Bonds and repay outstanding Tender Advances and other amounts received by or payable owing to the Mortgagee from time in such order as the Mortgagee may deter mine; provided, however, that the Mortgagee Shall not unreasonably withhold its consent to time which constitute insurance use of such proceeds to repair, rebuild or restore (collectively, "restore") the Mortgaged Property if the estimated cost of restoration does not exceed $50,000 or, if the cost of restoration exceeds $50,000, the following conditions are satisfied:
(i) Such Net Proceeds, together with other funds provided by the Mortgagor, are sufficient to restore the Mortgaged Property and the Mortgagee has a perfected, first priority pledge of such Net Proceeds and funds;
(ii) No Default or Event of Default exists hereunder and there has been no material adverse change in respect the financial condition or business prospects of any damage the Mortgagor;
(iii) The restored Mortgaged Property would have a utility and value at least equal to or destruction or condemnation that of the original Mortgaged Property in the good faith opinion of the Mortgagee;
(iv) The Corporation shall have satisfied all other conditions as the Mortgagee may reasonably impose, relating to the restoration, including approval by the Mortgagee of all plans, specifications and budgets. If the Net Proceeds fire made available for the restoration of the Mortgaged Property or any part thereofProperty, condemnation awards or compensation covering the Mortgagor shall promptly restore the Mortgaged Property in accordance with this Mortgage. "Net Proceeds" when used with respect to any insurance proceeds or award resulting from, or other amount received in connection with, eminent domain, shall mean the gross proceeds from such proceeds, award or other amount, less all expenses (less the actual costs, fees and expenses including attorneys' fees) incurred in the collection thereof)realization thereof All such replacements, proceeds from repairs, rebuilding or restorations so made, whether or not requiring the Special Risk Policy expenditure of the Mortgagor's own funds, shall be held by the Mortgagee as automatically become part of the Mortgaged Property and shall be applied by subject to the Mortgagee as follows:
(i) if a casualty occurs which results in a termination of the Lease, or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 lien of this Mortgage, such proceeds, award Mortgage without the necessity of filing any further documents or compensation, as the case may be, instruments. This Mortgage extends to and shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to the date of payment upon the terms and in the manner provided in Section 2.12 of this Mortgage, and the balance, if any, of encumber any such proceeds shall be paid to the Company; or
(ii) if a casualty or condemnation occurs which does not result in the termination of the Lease and the Company or the Tenant shall be required to repair, rebuild or restore the Mortgaged Property as required pursuant to the Lease, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee to the Company (or as the Company may direct from time to time) upon a written application of the Company and accompanied by such evidence in reasonable detail as may be satisfactory to the Mortgagee supporting such application for the purpose of paying, or reimbursing the Company for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding or restoring part or all payable on account of the Mortgaged Property damagedand any judgments, destroyed awards, damages and settlements hereafter rendered or taken (“Restoration”), but only for paid and resulting from condemnation proceedings with respect to the extent that the Company shows by such evidence of costs that the proceeds, award or compensation (“Restoration Funds”) remaining on deposit with the Mortgagee, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee for such purpose, shall be sufficient to complete such Restoration and restore the Mortgaged Property (as nearly as practicable) at least to or the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment of such proceeds, award or compensation shall state that no Event of Default has occurred and is continuing. Any proceeds in excess taking of the amount needed for Restoration remaining after the Restoration has been completed shall be (i) if the amount of rent payable Mortgaged Property under the Lease has been reduced as a result power of such condemnation or casualty, such amounts shall be held by the Mortgagee and at the option of the Mortgagee either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default is then existing, such amounts shall be disbursed to the Company. The Mortgagee shall receive a supplement hereto sufficient, as insured by appropriate title insurance acceptable to the Beneficiaryeminent domain.
(b) Subject to Section 2.15(b) hereof with respect to adjustments of losses, any appraisal or adjustment of such loss or any settlement or payment of indemnity therefor which shall be agreed upon between the Company and the relevant insurance company shall be accepted by the Mortgagee.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Bovie Medical Corp)
Insurance Proceeds and Condemnation Awards. (ai) Subject Promptly following the receipt thereof by any Obligor, Borrower shall deposit or cause to Section 4.4 hereof, be deposited with Agent in an interest bearing account (but without any obligation to maximize such interest) all of the net cash proceeds of any payment or award in excess of $250,000 made to any Obligor under any policy of Property insurance with respect to any of the Collateral or pursuant to any condemnation award with respect to any of the Collateral provided such amounts received by have not theretofore been reasonably expended for the restoration or payable to replacement of the Mortgagee from time to time which constitute insurance proceeds asset in respect of any damage which such payment or award was made. Such amounts shall be collaterally assigned to or destruction or condemnation Agent as security for the same portion of the Mortgaged Property or any part thereof, condemnation awards or compensation covering the Mortgaged Property (less the actual costs, fees and expenses incurred in the collection thereof), proceeds from the Special Risk Policy shall be held by the Mortgagee as part of the Mortgaged Property and shall be applied by the Mortgagee as follows:
(i) if a casualty occurs which results in a termination of the Lease, or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 of this Mortgage, such proceeds, award or compensation, Obligations as the case may be, shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to the date of payment upon the terms and in the manner provided in Section 2.12 of this Mortgage, and the balance, if any, of any such proceeds shall be paid to the Company; or
(ii) if a casualty or condemnation occurs which does not result in the termination of the Lease and the Company or the Tenant shall be required to repair, rebuild or restore the Mortgaged Property as required pursuant to the Lease, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee to the Company (or as the Company may direct from time to time) upon a written application of the Company and accompanied by such evidence in reasonable detail as may be satisfactory to the Mortgagee supporting such application for the purpose of paying, or reimbursing the Company for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding or restoring part or all of the Mortgaged Property damaged, destroyed or taken (“Restoration”), but only for and to the extent that the Company shows by such evidence of costs that the proceeds, award or compensation (“Restoration Funds”) remaining on deposit with the Mortgagee, together with any additional funds irrevocably allocated or otherwise provided for applicable Collateral secured in a manner satisfactory reasonably acceptable to Agent. Upon delivery to Agent of written certification by Borrower that the Mortgagee for such purpose, shall be sufficient applicable Obligor has reasonably expended amounts or committed in writing to complete such Restoration and restore the Mortgaged Property (as nearly as practicable) at least to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application expend amounts for the payment of such proceeds, award restoration or compensation shall state that no Event of Default has occurred and is continuing. Any proceeds in excess replacement of the amount needed for Restoration remaining after the Restoration has been completed shall be (i) if asset in respect of which such payment or award was made, specifying the amount of rent payable under the Lease has been reduced as a result of such condemnation expended or casualtycommitted, such amounts shall be held by the Mortgagee and at the option of the Mortgagee either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default is then existing, shall have occurred and be continuing any such amounts amount deposited with Agent shall be disbursed released by Agent to Borrower; provided, however, that, in the event that within 180 days of receipt of such payment or award by Borrower, to the Companyextent Borrower shall not have certified to Agent its intention to expend an equivalent amount for the restoration or replacement of the asset in respect of which such payment or award was made, Borrower shall make a prepayment on the Advance Loans (using any funds deposited with Agent pursuant to this Section 3.2(b)(1) or other funds) in the amount of the excess of the amount of such payment or award over the amount of such expenditures and/or commitment on such 180th day. The Mortgagee Such prepayment shall receive a supplement hereto sufficient, as insured by appropriate title insurance acceptable be applied to the BeneficiaryAdvance Notes secured by the applicable Collateral and shall be applied to scheduled principal installments in inverse order of their maturities.
(bii) Subject In cases where the amount of the net cash proceeds of any payment or award is equal to Section 2.15(b) hereof with respect or less than $250,000 and no Default or Event of Default has occurred and is continuing, such proceeds may be paid to adjustments of lossesany Obligor, any appraisal or adjustment of such loss or any settlement or payment of indemnity therefor which and if received by Agent shall be agreed upon between paid by Agent to Borrower, for use in paying for replacements or repairs of or substitutes for the Company and the relevant insurance company shall be accepted by the Mortgageedamaged, destroyed or taken assets.
Appears in 1 contract
Samples: Loan Agreement (Carrols Corp)
Insurance Proceeds and Condemnation Awards. (a) Subject to Section 4.4 hereof, the amounts received by or payable to the Mortgagee Beneficiary from time to time which constitute insurance proceeds in respect of any damage to or destruction or condemnation of the Mortgaged Granted Property or any part thereof, condemnation awards or compensation covering the Mortgaged Granted Property (less the actual costs, fees and expenses incurred in the collection thereof), proceeds from the Special Risk Policy shall be held by the Mortgagee Beneficiary as part of the Mortgaged Granted Property and shall be applied by the Mortgagee Beneficiary as follows:
(i) if a casualty occurs which results in a termination of the Lease, Naming Rights Agreement or if a condemnation occurs which results in the termination of the Lease Naming Rights Agreement (in either case as evidenced by a certificate of the Tenant LVCVA detailing the same) and the Company Grantor shall be required to prepay the Note pursuant to Section 2.12 of this MortgageDeed of Trust, such proceeds, award or compensation, as the case may be, shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to the date of payment upon the terms and in the manner provided in Section 2.12 of this MortgageDeed of Trust, and the balance, if any, of any such proceeds shall be paid to the CompanyGrantor; or
(ii) if a casualty or condemnation occurs which does not result in the termination of the Lease Naming Rights Agreement and the Company Grantor or the Tenant LVCVA shall be required to repair, rebuild or restore the Mortgaged Granted Property as required pursuant to the LeaseNaming Rights Agreement, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee Beneficiary to the Company Grantor (or as the Company Grantor may direct from time to time) upon a written application of the Company Grantor and accompanied by such evidence in reasonable detail as may be reasonably satisfactory to the Mortgagee Beneficiary supporting such application for the purpose of paying, or reimbursing the Company Grantor for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding or restoring part or all of the Mortgaged Granted Property damaged, destroyed or taken (“Restoration”), but only for and to the extent that the Company Grantor shows by such evidence of costs that the proceeds, award or compensation (“Restoration Funds”") remaining on deposit with the MortgageeBeneficiary, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee Beneficiary for such purpose, shall be sufficient to complete such Restoration and restore the Mortgaged Clark County Las Vegas Stadium, LLC Deed of Trust, Security Agreement, Assignment
(iii) Granted Property (as nearly as practicable) at least to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Company Grantor shall deliver to the Mortgagee Beneficiary any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment of such proceeds, award or compensation shall state that no Event of Default has occurred and is continuing. Any proceeds in excess of the amount needed for Restoration remaining after the Restoration has been completed shall be (i) if the amount of rent payable under the Lease Naming Rights Agreement has been reduced as a result of such condemnation or casualty, such amounts shall be held by the Mortgagee Beneficiary and at the option of the Mortgagee Beneficiary either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company Grantor under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease Naming Rights Agreement has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default is then existing, such amounts shall be disbursed to the CompanyGrantor. The Mortgagee Beneficiary shall receive a supplement hereto sufficienthereto, as insured by appropriate title insurance acceptable to the Beneficiary.
(b) Subject to Section 2.15(b) hereof with respect to adjustments of losses, any appraisal or adjustment of such loss or any settlement or payment of indemnity therefor which shall be agreed upon between the Company and the relevant insurance company shall be accepted by the Mortgagee.
Appears in 1 contract
Insurance Proceeds and Condemnation Awards. (a) Subject to Section 4.4 hereof, the The amounts received by or payable to the Mortgagee from time to time which constitute insurance proceeds in respect of any damage to or destruction or condemnation of the Mortgaged Property Collateral or any part thereof, condemnation awards thereof or Condemnation Awards or compensation covering the Mortgaged Property Collateral (less the actual costs, fees and expenses incurred in the collection thereof), proceeds from the Special Risk Policy ) shall be held by the Mortgagee as part of the Mortgaged Property Collateral and shall be applied by the Mortgagee as followsset forth below:
(i1) if a casualty occurs which results in a termination In the case of an Event of Loss or upon the Lease, or if a condemnation occurs which results in the termination receipt of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 of this Mortgage, such proceeds, award Condemnation Awards or compensation, as the case may be, shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to the date of payment upon the terms and in the manner provided in Section 2.12 of this Mortgage, and the balance, if any, of any such proceeds shall be paid to the Company; or
(ii) if a casualty or condemnation occurs which does not result in the termination of the Lease and the Company or the Tenant shall be required to repair, rebuild or restore the Mortgaged Property as required pursuant to the Lease, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee to the Company (or as the Company may direct from time to time) time as it may direct upon a written application signed by the President or any Vice President of the Company and Company. Such application shall be accompanied by such evidence in reasonable detail as may be satisfactory to the Mortgagee supporting such application for the purpose of paying, or reimbursing the Company for the payment of, the reasonable cost, as shown by such certificateapplication, of repairing, rebuilding repairing or restoring replacing part or all of the Mortgaged Property Collateral damaged, destroyed or taken condemned (“"Restoration”"), but only if written application is made therefore within twelve months of the receipt of such proceeds or Condemnation Award or compensation by the Company, and then only for and to the extent that the Company shows by such evidence of costs that the proceeds, portion of such proceeds or award or of compensation (“Restoration Funds”) remaining on deposit with the Mortgagee, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee for such purpose, shall be sufficient to complete such Restoration and restore or replace the Mortgaged Property (as nearly as practicable) Collateral at least to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment of such proceeds, award proceeds or Condemnation Award or compensation shall state that no Event of Default has occurred and is continuing. Any proceeds in excess So long as no Event of Default shall have occurred and be continuing and upon the written request of the amount needed for Restoration remaining after Company accompanied by evidence satisfactory to the Mortgagee that the Restoration has been completed and the costs thereof paid in full, the balance, if any, of such proceeds in excess thereof shall be (i) if the amount of rent payable under the Lease has been reduced as a result of such condemnation or casualty, such amounts shall be held by the Mortgagee and at the option of the Mortgagee either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default is then existing, such amounts shall be disbursed paid to the Company. The Mortgagee shall receive a supplement hereto sufficient, as insured shown by appropriate title insurance acceptable to an opinion of counsel (which may be counsel for the Beneficiary.
(bCompany) Subject to Section 2.15(b) hereof with respect to adjustments of losses, any appraisal or adjustment of such loss or any settlement or payment of indemnity therefor which shall be agreed upon between the Company and the relevant insurance company shall be accepted if requested by the Mortgagee, to grant a valid first Lien and first perfected security interest (subject to Permitted Encumbrances) in any additions to or substitutions for the Collateral to or for the benefit of the Mortgagee, which opinion shall also cover the filing and/or recording of such supplement (and a financing statement or similar notice thereof if and to the extent permitted or required by applicable law) so as to perfect the Lien and security interest In such additions or substitutions, or in the alternative an opinion that no such supplement required for such purpose.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Striker Industries Inc)
Insurance Proceeds and Condemnation Awards. (a) Subject to Section 4.4 hereof, the amounts received by or payable to the Mortgagee from time to time which constitute insurance proceeds in respect of any damage to or destruction or condemnation of the Mortgaged Property or any part thereof, condemnation awards or compensation covering the Mortgaged Property (less the actual costs, fees and expenses incurred in the collection thereof), proceeds from the Special Risk Policy shall be held by the Mortgagee as part of the Mortgaged Property and shall be applied by the Mortgagee as follows:
If (i) if a casualty occurs which results in a termination Restoration of the Lease, or if Project following a condemnation occurs which results in Casualty is reasonably expected to cost less than One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00) (the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 of this Mortgage, such proceeds, award or compensation, as the case may be, shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to the date of payment upon the terms and in the manner provided in Section 2.12 of this Mortgage, and the balance, if any, of any such proceeds shall be paid to the Company; or
(ii) if a casualty or condemnation occurs which does not result in the termination of the Lease and the Company or the Tenant shall be required to repair, rebuild or restore the Mortgaged Property as required pursuant to the Lease, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee to the Company (or as the Company may direct from time to time) upon a written application of the Company and accompanied by such evidence in reasonable detail as may be satisfactory to the Mortgagee supporting such application for the purpose of paying, or reimbursing the Company for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding or restoring part or all of the Mortgaged Property damaged, destroyed or taken (“Restoration”"Insurance Threshold Amount"), but only for and to the extent that the Company shows by such evidence of costs that the proceeds, award or compensation (“Restoration Funds”) remaining on deposit with the Mortgagee, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee for such purpose, shall be sufficient to complete such Restoration and restore the Mortgaged Property (as nearly as practicable) at least to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment of such proceeds, award or compensation shall state that no Event of Default has occurred and is continuing. Any proceeds in excess of the amount needed for Restoration remaining after the Restoration has been completed shall be (i) if the amount of rent payable under the Lease has been reduced as a result of such condemnation or casualty, such amounts shall be held by the Mortgagee and at the option of the Mortgagee either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under Condemnation Award is reasonably expected to be less than One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00) (the Lease has not been so reduced as a result of such condemnation or casualty and so long as "Condemnation Threshold Amount"), provided no Default or Event of Default is then existingexists, such amounts shall be disbursed Borrower may, upon written notice to Administrative Agent but without the Company. The Mortgagee shall receive a supplement hereto sufficientneed to obtain the prior written consent of Administrative Agent, as insured by appropriate title insurance acceptable to the Beneficiary.
(b) Subject to Section 2.15(b) hereof settle and adjust any claim with respect to adjustments a Casualty and settle or agree to any Condemnation Award, and Borrower is hereby authorized to collect such Insurance Proceeds or Condemnation Awards with respect thereto. If Restoration of lossesthe Project is reasonably expected to cost an amount equal to or in excess of the Insurance Threshold Amount (a "Significant Casualty", or the Condemnation Award is reasonably expected to be an amount equal to or in excess of the Condemnation Threshold Amount (a "Significant Condemnation Event"), then (i) Borrower shall not, without the reasonable prior written consent of Administrative Agent, settle or adjust any appraisal claim of Borrower or agree with any insurer(s) on the amount to be paid in connection with such Significant Casualty, or settle or agree to the amount of any such Condemnation Award, and (ii) all Insurance Proceeds and Condemnation Awards shall be due and payable solely to Administrative Agent and held in a Controlled Account in accordance with Section 11.03. If an Event of Default exists, with respect to any Casualty or Condemnation, (i) Administrative Agent, in its sole discretion, may settle and adjust any claim or award without the consent of Borrower, (ii) all Insurance Proceeds and Condemnation Awards shall be due and payable solely to and held by Administrative Agent in a Controlled Account and applied in accordance with Section 11.03, and (iii) without Administrative Agent's prior consent, other than as required by any applicable insurance policy or Applicable Law Borrower shall not take any action or fail to take any action which would cause the amount of the Insurance Proceeds or Condemnation Awards to be affected or determined. Administrative Agent shall be under no obligation to question the amount of any Insurance Proceeds or Condemnation Award and may accept the same in the amount in which the same shall be paid. If Borrower is a payee on any check representing Insurance Proceeds with respect to a Significant Casualty, Borrower shall immediately endorse, such check payable to the order of Administrative Agent. Borrower hereby irrevocably appoints Administrative Agent as its attorney--in--fact, coupled with an interest, to endorse such check payable to the order of Administrative Agent. All out--of--pocket expenses incurred by Administrative Agent in the settlement, adjustment and collection of the Insurance shall become part of the Obligations and shall be reimbursed by Borrower to Administrative Agent upon demand. Notwithstanding the occurrence of any Casualty or Condemnation, (i) Borrower shall continue to pay the Obligations at the time and in the manner provided for its payment in this Agreement and the Obligations shall not be reduced until any Insurance Proceeds or Condemnation Awards shall have been actually received and applied by Administrative Agent, after the deduction of expenses of collection, to the reduction or discharge of the Obligations, and (ii) subject to all other provisions of this Agreement, Administrative Agent shall continue to make Loan Advances to Borrower notwithstanding the existence of such loss Casualty or Condemnation. With respect to any Condemnation, (i) the Lenders shall not be limited to the interest paid on the Condemnation Award by the condemning authority but shall be entitled to receive out of the Condemnation Award interest at the rate or rates provided herein or in the Notes and this Agreement, (ii) if the Project or any settlement portion thereof is subject to a Condemnation, provided that any Condemnation Awards are made available to Borrower for such purpose by Administrative Agent, Borrower shall promptly commence and diligently prosecute the Restoration of the Project and otherwise comply with the provisions of Section 11.03, (iii) if the Project is sold, through foreclosure or payment otherwise, prior to the receipt by Administrative Agent of indemnity therefor which the Condemnation Award, Administrative Agent and the Lenders shall have the right, whether or not a deficiency judgment on the Notes shall have been sought, recovered or denied, to receive the Condemnation Award, or a portion thereof sufficient to pay the Obligations. The failure by Borrower to apply Condemnation Awards in accordance with this Article XI (not cured within any applicable cure period) shall be agreed upon between the Company and the relevant insurance company shall be accepted by the Mortgageean Event of Default.
Appears in 1 contract
Insurance Proceeds and Condemnation Awards. (a) Subject to the provisions of Section 4.4 hereof13.1 hereof and this Article XIV, (x) if all or a portion of any Property is damaged or destroyed in whole or in part by a Casualty during the amounts Lease Term for such Property, any insurance proceeds payable with respect to such Casualty shall be adjusted by and paid directly to the Lessee, or if received by the Administrative Agent or payable any Participant, shall be paid over to the Mortgagee from time to time which constitute insurance proceeds in respect of any damage to or destruction or condemnation Lessee for the reconstruction, refurbishment and repair of the Mortgaged affected Property, and (y) if the use, access, occupancy, easement rights or title to any Property or any part thereofthereof is the subject of a Condemnation during the Lease Term for such Property, condemnation awards then any award or compensation covering the Mortgaged Property (less the actual costs, fees and expenses incurred in the collection thereof), proceeds from the Special Risk Policy relating thereto shall be held adjusted by the Mortgagee as part of the Mortgaged Property and shall be applied by the Mortgagee as follows:
(i) if a casualty occurs which results in a termination of the Lease, or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 of this Mortgage, such proceeds, award or compensation, as the case may be, shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to the date of payment upon the terms and in the manner provided in Section 2.12 of this Mortgage, and the balance, if any, of any such proceeds shall be paid to the CompanyLessee; or
provided, however, that, in each case, if (iiA) if a casualty or condemnation occurs which does not result in the termination of the any Lease Default shall have occurred and the Company or the Tenant shall be required to repair, rebuild or restore the Mortgaged Property as required pursuant to the Lease, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee to the Company (or as the Company may direct from time to time) upon a written application of the Company and accompanied by such evidence in reasonable detail as may be satisfactory to the Mortgagee supporting such application for the purpose of payingcontinuing, or reimbursing (B) such Casualty or Condemnation is an Event of Loss or (c) the Company for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding or restoring part or all of the Mortgaged Property damaged, destroyed or taken (“Restoration”), but only for and to the extent that the Company shows by such evidence of costs that the proceeds, award or compensation (“Restoration Funds”) remaining on deposit with the Mortgagee, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee for such purpose, shall be sufficient to complete such Restoration and restore the Mortgaged Property (as nearly as practicable) at least to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment amount of such proceeds, award or compensation equals or exceeds $2,000,000, then such award, compensation or insurance proceeds shall state that no Event of Default has occurred be adjusted jointly by the Lessee and is continuing. Any proceeds in excess the Lessor and paid directly to the Administrative Agent (as assignee of the amount needed for Restoration remaining after Lessor) or, if received by the Restoration has been completed Lessee, shall be held in trust for the Participants and shall be paid over by the Lessee to the Administrative Agent, to be distributed by the Administrative Agent as follows: (ix) if in the amount case of rent payable under the a Lease has been reduced as a result of such condemnation or casualtyDefault, such amounts shall be held by the Mortgagee and at the option distributed in accordance with Section 7.6(b) of the Mortgagee either Participation Agreement or held as additional security for the Lessee's obligations, and (y) in the case of an Event of Loss, such amounts shall, in the Lessor's and the Administrative Agent's reasonable discretion, either (1) be paid to the Lessee for the repair and restoration of such Property in accordance with Section 14.2(d) or (2) be applied to future payments toward the payment of the applicable Property Cost of the affected Property and related amounts on the Note as they come due (or as otherwise required to satisfy any obligations of the Company under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or applicable Partial Termination Date in accordance with Section 15.1, and (z) applied in the case of proceeds, awards or compensation equal to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note or in full by the original maturity date excess of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default is then existing$2,000,000, such amounts shall be disbursed paid to and held by the Administrative Agent and, so long as no Lease Default shall have occurred and be continuing, paid to the Company. The Mortgagee shall receive a supplement hereto sufficient, as insured by appropriate title insurance acceptable to Lessee upon completion of the Beneficiary.
(b) Subject to Section 2.15(b) hereof with respect to adjustments of losses, any appraisal or adjustment repair and restoration of such loss or any settlement or payment of indemnity therefor which shall be agreed upon between the Company and the relevant insurance company shall be accepted by the MortgageeProperty.
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Insurance Proceeds and Condemnation Awards. (a) Subject to Section 4.4 hereof, In the amounts received by or payable to the Mortgagee from time to time which constitute insurance proceeds in respect event of any damage to or destruction a casualty or condemnation of the Mortgaged Property Building (or any part portion thereof) prior to the Closing, condemnation awards the Fund Member shall cause Legacy Yards, or compensation covering Developer on behalf of Legacy Yards, to repair and restore any damage to the Mortgaged Property Building to the extent that such damage affects any portion of the Building that constitutes or originally constituted Developer Work) and is capable of being repaired and restored (less the actual costs, fees and expenses incurred in the collection thereofor reconstructed), proceeds from exclusive of any Finish Work (other than Developer Finish Work). Notwithstanding the Special Risk Policy shall be held by the Mortgagee as part of the Mortgaged Property and shall be applied by the Mortgagee as follows:
(i) if a casualty occurs which results in a termination of the Lease, or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 of this Mortgage, such proceeds, award or compensation, as the case may be, shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to the date of payment upon the terms and in the manner provided in Section 2.12 of this Mortgage, and the balanceforegoing, if any, of any such proceeds shall be paid to the Company; or
(ii) if a casualty or condemnation occurs which does not result constitutes a Major Event and/or if the insurance proceeds or condemnation award received by the Company with respect to any casualty or condemnation are or is insufficient to fund in full the termination costs of such repair and restoration, then the Members shall, subject to the terms of the Lease Loan Documents and the Company or Project Documents, either agree (in their respective discretion) to sell the Tenant shall be required to repair, rebuild or restore the Mortgaged Property as required pursuant to the Lease, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee to assets of the Company (or as the Company may direct from time to time) upon a written application and, after paying all liabilities of the Company and accompanied by such evidence in reasonable detail as may be satisfactory to its Subsidiaries, including, without limitation, the Mortgagee supporting such application for the purpose of payingConstruction Loan, or reimbursing liquidate the Company for in accordance with the payment ofprovisions of Article 11 hereof or, in the reasonable costabsence of such agreement, as shown by to make Capital Contributions or loans to fund the unfunded Project Costs of such certificaterepair and restoration, of repairingwhich, rebuilding or restoring part or all in the case of the Mortgaged Property damaged, destroyed or taken (“Restoration”), but only for and to the extent that the Company shows by such evidence of costs that the proceeds, award or compensation (“Restoration Funds”) remaining on deposit with the Mortgagee, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee for such purposeCoach Member, shall be sufficient to complete such Restoration and restore the Mortgaged Property (as nearly as practicable) at least subject to the market value terms and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment of such proceeds, award or compensation shall state that no Event of Default has occurred and is continuing. Any proceeds in excess conditions of the amount needed for Restoration remaining after the Restoration has been completed shall be Development Agreement (i) if the amount of rent payable under the Lease has been reduced as a result of such condemnation or casualtyincluding, such amounts shall be held by the Mortgagee and at the option of the Mortgagee either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principallimitation, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default is then existing, such amounts shall be disbursed to the Company. The Mortgagee shall receive a supplement hereto sufficient, as insured by appropriate title insurance acceptable to the BeneficiaryCoach Costs Cap).
(b) Subject If, prior to Section 2.15(b) hereof the date on which the Condominium Declaration is filed, the Company collects property insurance proceeds or condemnation awards and, after the completion of all required restoration, all of such monies have not been applied to the repair or restoration of the Building, then after paying any expenses of collecting the insurance and any amounts due with respect to adjustments the Construction Loan, the Fund Member shall allocate the remaining insurance proceeds or condemnation award among the Members (and disburse the proceeds or award to the Members) in proportion to the Member’s Percentage Interests; provided that, subject to the terms of lossesthe Loan Documents, any appraisal such proceeds or adjustment of such loss or any settlement or payment of indemnity therefor which award to the extent attributable to (i) the Coach Unit shall be agreed upon between allocated to the Company Coach Member and the relevant insurance company Coach Lender, and (ii) any Fund Member Unit shall be accepted allocated to the Fund Member and the Third Party Lender.
(c) Following the date on which the Condominium Declaration is filed, each Member shall collect insurance proceeds or condemnation awards as set forth in (and shall be governed by the Mortgageeinsurance, casualty and condemnation provisions of) the Condominium Declaration.
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Insurance Proceeds and Condemnation Awards. (ai) Subject to Section 4.4 hereofthe Intercreditor Agreement, no later than three (3) Business Days after receipt by any Credit Party or any of their respective Subsidiaries of net proceeds under any insurance policy (other than business interruption or key man life insurance) on account of damage or destruction of any Collateral constituting Term Loan Priority Collateral in excess of $1,000,000 in the aggregate of such Credit Party or any such Subsidiary, the amounts received by or payable Borrowers shall repay the Loans in an aggregate amount equal to the Mortgagee from time to time which constitute insurance proceeds in respect 100% of any damage to or destruction or condemnation of the Mortgaged Property or any part thereofsuch net proceeds under such insurance policy; provided that, condemnation awards or compensation covering the Mortgaged Property (less the actual costsin each case, fees and expenses incurred in the collection thereof), proceeds from the Special Risk Policy no such payment shall be held by the Mortgagee as part of the Mortgaged Property and shall be applied by the Mortgagee as follows:
required if (i) if a casualty occurs which results in a termination of the Lease, or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 of this Mortgage, such proceeds, award or compensation, as the case may be, shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to the date of payment upon the terms and in the manner provided in Section 2.12 of this Mortgage, and the balance, if any, of any such proceeds shall be paid to the Company; or
(ii) if a casualty or condemnation occurs which does not result in the termination of the Lease and the Company or the Tenant shall be required to repair, rebuild or restore the Mortgaged Property as required pursuant to the Lease, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee to the Company (or as the Company may direct from time to time) upon a written application of the Company and accompanied by such evidence in reasonable detail as may be satisfactory to the Mortgagee supporting such application for the purpose of paying, or reimbursing the Company for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding or restoring part or all of the Mortgaged Property damaged, destroyed or taken (“Restoration”), but only for and to the extent that the Company shows by such evidence of costs that the proceeds, award or compensation (“Restoration Funds”) remaining on deposit with the Mortgagee, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee for such purpose, shall be sufficient to complete such Restoration and restore the Mortgaged Property (as nearly as practicable) at least to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment of such proceeds, award or compensation shall state that no Event of Default has occurred and is continuing. Any proceeds in excess of the amount needed for Restoration remaining after the Restoration has been completed shall be (i) if the amount of rent payable under the Lease has been reduced as a result of such condemnation or casualty, such amounts shall be held by the Mortgagee and at the option of the Mortgagee either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default exists and (ii) the proceeds of such insurance are used within 150 days to acquire replacement Term Loan Priority Collateral or other property useful in the conduct of the Borrowers’ business which replacement property is then existing, subject to Agent’s Liens for the benefit of itself and the ratable benefit of the Lenders as and to the extent required hereunder. Any such amounts prepayment shall be disbursed to the Company. The Mortgagee shall receive a supplement hereto sufficient, applied as insured by appropriate title insurance acceptable to the Beneficiaryset forth in clause (e) below.
(bii) Subject to Section 2.15(bthe Intercreditor Agreement, no later than three (3) hereof with respect Business Days after receipt by any Credit Party or any of their respective Subsidiaries of net proceeds as a result of any taking or condemnation of any Term Loan Priority Collateral, the Borrowers shall repay the Loans in an aggregate amount equal to adjustments 100% of losses, any appraisal or adjustment such net proceeds of such loss taking or any settlement or condemnation event; provided that, in each case, no such payment of indemnity therefor which shall be agreed upon between required if (i) no Default or Event of Default exists and (ii) the Company proceeds of any such condemnation are used within 150 days to acquire replacement Term Loan Priority Collateral or other property useful in the conduct of the Borrowers’ business, which replacement property is subject to Agent’s Liens for the benefit of itself and the relevant insurance company ratable benefit of the Lenders as and to the extent required hereunder. Any such prepayment shall be accepted by the Mortgageeapplied as set forth in clause (e) below.
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Samples: Term Loan Credit and Security Agreement (Hudson Technologies Inc /Ny)
Insurance Proceeds and Condemnation Awards. (a) Subject to Section 4.4 hereofthe provisions of this Article XIV, (x) if all or a portion of any Property is damaged or destroyed in whole or in part by a Casualty while such Property is subject to the amounts provisions of this Master Lease, any insurance proceeds payable with respect to such Casualty shall be paid directly to the Lessee, or if received by or payable the Lessor, shall be paid over to the Mortgagee from time to time which constitute insurance proceeds in respect of any damage to or destruction or condemnation Lessee for the reconstruction, refurbishment and repair of the Mortgaged affected Property, and (y) if the use, access, occupancy, easement rights or title to any Property or any part thereofthereof is the subject of a Condemnation while such Property is subject to the provisions of this Master Lease, condemnation awards then any award or compensation covering the Mortgaged Property (less the actual costs, fees and expenses incurred in the collection thereof), proceeds from the Special Risk Policy shall be held by the Mortgagee as part of the Mortgaged Property and shall be applied by the Mortgagee as follows:
(i) if a casualty occurs which results in a termination of the Lease, or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 of this Mortgage, such proceeds, award or compensation, as the case may be, shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to the date of payment upon the terms and in the manner provided in Section 2.12 of this Mortgage, and the balance, if any, of any such proceeds relating thereto shall be paid to the CompanyLessee; or
provided, however, that, in each case, if (iiA) if a casualty any Lease Default or condemnation occurs which does Lease Event of Default shall have occurred and be continuing or (B) the Lessee shall not result in the termination have Ratings of the Lease "BBB-" or better by S&P and the Company "Baa3" or the Tenant better by Xxxxx'x, then such award, compensation or insurance proceeds shall be required to repair, rebuild or restore the Mortgaged Property as required pursuant paid directly to the LeaseLessor or, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards if received by the Lessee, shall be held in trust for the Lessor and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee Lessee to the Company (Lessor, and the Lessor shall hold such amounts in a segregated account and, upon presentation by the Lessee of paid invoices or as the Company may direct from time to time) upon a written application of the Company and accompanied by such other evidence in reasonable detail as may be reasonably satisfactory to the Mortgagee supporting Lessor as to the Lessee's prior payment of reasonable costs required for repair of the applicable Property, the Lessor shall pay such application amounts over to the Lessee to reimburse the Lessee for the purpose reasonable cost of paying, or reimbursing the Company for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding or restoring part or all repair and restoration of the Mortgaged applicable Property damaged(provided that, destroyed so long as no Lease Default or taken (“Restoration”)Lease Event of Default shall have occurred and be continuing, but only for and any such insurance proceeds, awards or compensation shall be paid to the extent that Lessee in an amount, in the Company shows by such evidence of costs that the proceeds, award or compensation (“Restoration Funds”) remaining on deposit aggregate with the Mortgagee, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee for such purpose, shall be sufficient to complete such Restoration and restore the Mortgaged Property (as nearly as practicable) at least to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment of all such proceeds, award awards and compensation relating to the applicable Property, not to exceed the lesser of $5,000,000 and 25% of the Termination Base Amount of the affected Property (with any excess over such lesser amount to be paid over to the Lessor in accordance with the foregoing proviso); provided, further, however, that in the case of (x) a Lease Default or compensation shall state that no Lease Event of Default has occurred and is continuing. Any proceeds in excess of the amount needed for Restoration remaining after the Restoration has been completed shall be (i) if the amount of rent payable under the Lease has been reduced as a result of such condemnation or casualtyDefault, such amounts shall be held by the Mortgagee and at the option of the Mortgagee either (y) applied the delivery by the Lessor of a Partial Termination Notice with respect to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received such Property or (z) applied to the outstanding principal Lessee's election (without premiumif applicable) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default is then existing, such amounts shall be disbursed to the Company. The Mortgagee shall receive a supplement hereto sufficient, as insured by appropriate title insurance acceptable to the Beneficiary.
(b) Subject to Section 2.15(b) hereof its Termination Option with respect to adjustments of lossessuch Property, any appraisal or adjustment of then such loss or any settlement or amounts shall, in the Lessor's discretion, be applied toward the payment of indemnity therefor which shall be agreed upon between the Company Termination Price or Termination Base Amount (as applicable) of the affected Property and the relevant insurance company shall be accepted by the Mortgageerelated amounts in accordance with Section 16.2, 15.1 or 19.1 (as applicable).
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Samples: Master Lease and Deed of Trust (Itt Industries Inc)
Insurance Proceeds and Condemnation Awards. (a) Subject to Section 4.4 hereofIf, the amounts received by or payable prior to the Mortgagee from time to time which constitute insurance proceeds payment in respect of any damage to full or destruction or condemnation satisfaction of the Indebtedness (or provisions for payment thereof having been made in accordance with the provisions hereof and of the Agreement) the Mortgaged Property Property, or any part or component thereof, condemnation awards shall be damaged, lost or destroyed, by whatever cause, except as provided in paragraphs 8 and 9 hereof, or if any public authority or entity, in the exercise of its power of eminent domain, takes or damages the Mortgaged Property, or any part or component thereof, there shall be no abatement or reduction in the amounts payable by the Mortgagor under the Agreement, or the Indebtedness payable under this Mortgage, and all of the insurance proceeds (whether payable from the policies of insurance described in paragraph 16 above or from other policies of insurance carried by the Mortgagor or third parties), and any award or compensation covering the Mortgaged Property (less the actual costs, fees and expenses incurred in the collection thereof), proceeds resulting from the Special Risk Policy such taking or damage by condemnation shall be held by applied to the Mortgagee as repair, rebuilding, replacement or restoration of the Project or, at the Mortgagor's election and with the prior written approval of the Mortgagee, the redemption of Bonds. All such replacements, repairs, rebuilding or restorations so made, whether or not requiring the expenditure of the Mortgagor's own funds, shall automatically become part of the Project and subject to the lien of this Mortgage without the necessity of filing any further documents or instruments. This Mortgage extends to and shall encumber any insurance proceeds payable on account of the Mortgaged Property and shall be applied by any judgments, awards, damages and settlements hereafter rendered or paid and resulting from condemnation proceedings with respect to the Mortgagee as follows:
(i) if a casualty occurs which results in a termination of the LeaseMortgaged Property, or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 of this Mortgageany portion thereof, such proceeds, award or compensation, as the case may be, shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to the date of payment upon the terms and in the manner provided in Section 2.12 of this Mortgage, and the balance, if any, of any such proceeds shall be paid to the Company; or
(ii) if a casualty or condemnation occurs which does not result in the termination of the Lease and the Company or the Tenant shall be required to repair, rebuild or restore the Mortgaged Property as required pursuant to the Lease, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee to the Company (or as the Company may direct from time to time) upon a written application of the Company and accompanied by such evidence in reasonable detail as may be satisfactory to the Mortgagee supporting such application for the purpose of paying, or reimbursing the Company for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding or restoring part or all taking of the Mortgaged Property damagedProperty, destroyed or taken (“Restoration”)any portion thereof, but only for and to the extent that the Company shows by such evidence of costs that the proceeds, award or compensation (“Restoration Funds”) remaining on deposit with the Mortgagee, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee for such purpose, shall be sufficient to complete such Restoration and restore the Mortgaged Property (as nearly as practicable) at least to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment of such proceeds, award or compensation shall state that no Event of Default has occurred and is continuing. Any proceeds in excess of the amount needed for Restoration remaining after the Restoration has been completed shall be (i) if the amount of rent payable under the Lease has been reduced as a result power of such condemnation or casualty, such amounts shall be held by the Mortgagee and at the option of the Mortgagee either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default is then existing, such amounts shall be disbursed to the Company. The Mortgagee shall receive a supplement hereto sufficient, as insured by appropriate title insurance acceptable to the Beneficiaryeminent domain.
(b) Subject to Section 2.15(b) hereof with respect to adjustments of losses, any appraisal or adjustment of such loss or any settlement or payment of indemnity therefor which shall be agreed upon between the Company and the relevant insurance company shall be accepted by the Mortgagee.
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Insurance Proceeds and Condemnation Awards. (ai) Subject to Section 4.4 hereofPromptly following the receipt thereof by Borrower or any of its Subsidiaries, the amounts received by or payable subject to the Mortgagee from time rights of any applicable lessor, Borrower shall deposit or cause to time which constitute be deposited with Agent in an interest bearing account (but without any obligation to maximize such interest) all of the net cash proceeds of any payment or award in excess of $50,000 made to any such Person under any policy of Property insurance proceeds with respect to any Property owned by such Person or pursuant to any condemnation award with respect to any such Property; provided such amounts have not theretofore been reasonably expended for the restoration or replacement of the asset in respect of any damage to which such payment or destruction or condemnation of the Mortgaged Property or any part thereof, condemnation awards or compensation covering the Mortgaged Property (less the actual costs, fees and expenses incurred in the collection thereof), proceeds from the Special Risk Policy award was made. Such amounts shall be held by the Mortgagee collaterally assigned to Agent as part of the Mortgaged Property and shall be applied by the Mortgagee as follows:
(i) if a casualty occurs which results in a termination of the Lease, or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 of this Mortgage, such proceeds, award or compensation, as the case may be, shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to the date of payment upon the terms and in the manner provided in Section 2.12 of this Mortgage, and the balance, if any, of any such proceeds shall be paid to the Company; or
(ii) if a casualty or condemnation occurs which does not result in the termination of the Lease and the Company or the Tenant shall be required to repair, rebuild or restore the Mortgaged Property as required pursuant to the Lease, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee to the Company (or as the Company may direct from time to time) upon a written application of the Company and accompanied by such evidence in reasonable detail as may be satisfactory to the Mortgagee supporting such application security for the purpose of paying, or reimbursing the Company for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding or restoring part or all of the Mortgaged Property damaged, destroyed or taken (“Restoration”), but only for and to the extent that the Company shows by such evidence of costs that the proceeds, award or compensation (“Restoration Funds”) remaining on deposit with the Mortgagee, together with any additional funds irrevocably allocated or otherwise provided for Obligations in a manner satisfactory reasonably acceptable to Agent. Upon delivery to Agent of written certification by Borrower that the Mortgagee for such purpose, shall be sufficient applicable Obligor has reasonably expended amounts or committed in writing to complete such Restoration and restore the Mortgaged Property (as nearly as practicable) at least to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application expend amounts for the payment of such proceeds, award restoration or compensation shall state that no Event of Default has occurred and is continuing. Any proceeds in excess replacement of the amount needed for Restoration remaining after the Restoration has been completed shall be (i) if asset in respect of which such payment or award was made, specifying the amount of rent payable under the Lease has been reduced as a result of such condemnation expended or casualtycommitted, such amounts shall be held by the Mortgagee and at the option of the Mortgagee either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default is then existing, shall have occurred and be continuing any such amounts amount deposited with Agent shall be disbursed released by Agent to Borrower; PROVIDED, HOWEVER, that, in the event that within 180 days of receipt of such payment or award by Borrower, to the Companyextent Borrower shall not have actually spent or certified to Agent its intention to expend a substantially equivalent amount for the restoration or replacement of the asset in respect of which such payment or award was made, Borrower shall make a prepayment on the Loans (using any funds deposited with Agent pursuant to this SECTION 3.2(B)(1) or other funds) in the amount of the excess of the amount of such payment or award over the amount of such expenditures and/or commitment on such 180th day. The Mortgagee To the extent that such prepayment arises out of an event occurring with respect to Property which does not constitute "current assets", the Stationary Term Loan Balance shall receive a supplement hereto sufficient, as insured automatically be reduced by appropriate title insurance acceptable to the Beneficiaryamount of such prepayment.
(bii) Subject In cases where the amount of the net cash proceeds of any payment or award is equal to Section 2.15(b) hereof with respect or less than $50,000 and no Default or Event of Default has occurred and is continuing, such proceeds may be paid to adjustments of lossesany Obligor, any appraisal or adjustment of such loss or any settlement or payment of indemnity therefor which and if received by Agent shall be agreed upon between paid by Agent to Borrower, for use in paying for replacements or repairs of or substitutes for the Company and the relevant insurance company shall be accepted by the Mortgageedamaged, destroyed or taken assets or in a manner otherwise consistent with this Agreement.
Appears in 1 contract
Insurance Proceeds and Condemnation Awards. (a) Subject to the provisions of Section 4.4 hereof13.1 hereof and this Article XIV, (x) if all or a portion of the amounts Property is damaged or destroyed in whole or in part by a Casualty during the Lease Term, any insurance proceeds payable with respect to such Casualty shall be adjusted by and paid directly to the Lessee, or if received by the Indenture Trustee or payable any Participant, shall be paid over to the Mortgagee from time to time which constitute insurance proceeds in respect of any damage to or destruction or condemnation Lessee for the reconstruction, refurbishment and repair of the Mortgaged Property, and (y) if the use, access, occupancy, easement rights or title to the Property or any part thereofthereof is the subject of a Condemnation during the Lease Term for the Property, condemnation awards then any award or compensation covering the Mortgaged Property (less the actual costs, fees and expenses incurred in the collection thereof), proceeds from the Special Risk Policy relating thereto shall be held adjusted by the Mortgagee as part of the Mortgaged Property and shall be applied by the Mortgagee as follows:
(i) if a casualty occurs which results in a termination of the Lease, or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 of this Mortgage, such proceeds, award or compensation, as the case may be, shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to the date of payment upon the terms and in the manner provided in Section 2.12 of this Mortgage, and the balance, if any, of any such proceeds shall be paid to the CompanyLessee; or
provided, however, that, in each case, if (iiA) if a casualty or condemnation occurs which does not result in the termination of the any Lease Default shall have occurred and the Company or the Tenant shall be required to repair, rebuild or restore the Mortgaged Property as required pursuant to the Lease, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee to the Company (or as the Company may direct from time to time) upon a written application of the Company and accompanied by such evidence in reasonable detail as may be satisfactory to the Mortgagee supporting such application for the purpose of payingcontinuing, or reimbursing (B) such Casualty or Condemnation is an Event of Loss or (c) the Company for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding or restoring part or all of the Mortgaged Property damaged, destroyed or taken (“Restoration”), but only for and to the extent that the Company shows by such evidence of costs that the proceeds, award or compensation (“Restoration Funds”) remaining on deposit with the Mortgagee, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee for such purpose, shall be sufficient to complete such Restoration and restore the Mortgaged Property (as nearly as practicable) at least to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment amount of such proceeds, award or compensation equals or exceeds $5,000,000, then such award, compensation or insurance proceeds shall state that no Event of Default has occurred be adjusted jointly by the Lessee and is continuing. Any proceeds in excess the Lessor and paid directly to the Indenture Trustee (as assignee of the amount needed for Restoration remaining after Lessor) or, if received by the Restoration has been completed Lessee, shall be held in trust for the Participants and shall be paid over by the Lessee to the Indenture Trustee, to be distributed by the Indenture Trustee as follows: (ix) if in the amount case of rent payable under the a Lease has been reduced as a result of such condemnation or casualtyDefault, such amounts shall be held by the Mortgagee and at the option distributed in accordance with Section 7.6(b) of the Mortgagee either Participation Agreement or held as additional security for the Lessee's obligations, and (y) applied in the case of an Event of Loss, such amounts shall either (1) if the Lessee has elected the option set forth in Section 14.2(a)(ii), be paid to future payments on the Note as they come due (or as otherwise required to satisfy any obligations Lessee for the repair and restoration of the Company under any Property in accordance with Section 14.2(e) or (2) if the Lessee has elected or is deemed to have elected the option set forth in Section 14.2(a)(i), be applied toward the payment of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or Lease Balance in accordance with Section 15.1, and (z) applied in the case of proceeds, awards or compensation equal to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note or in full by the original maturity date excess of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default is then existing$5,000,000, such amounts shall be disbursed paid to and held by the Indenture Trustee and, so long as no Lease Default shall have occurred and be continuing, paid to the Company. The Mortgagee shall receive a supplement hereto sufficient, as insured by appropriate title insurance acceptable to Lessee upon completion of the Beneficiaryrepair and restoration of the Property.
(b) Subject to Section 2.15(b) hereof with respect to adjustments of losses, any appraisal or adjustment of such loss or any settlement or payment of indemnity therefor which shall be agreed upon between the Company and the relevant insurance company shall be accepted by the Mortgagee.
Appears in 1 contract
Samples: Master Lease and Deed of Trust (Sabre Holdings Corp)
Insurance Proceeds and Condemnation Awards. (a) Subject to the provisions of this Article XIV, (x) if all or a portion of any Property is damaged or destroyed in whole or in part by a Casualty during the Lease Term for such Property, any insurance proceeds payable with respect to such Casualty shall (subject to the terms of Section 4.4 13.1(c)(ii) hereof) be paid directly to the Lessee, the amounts or if received by Administrative Agent or payable any Participant, shall be paid over to the Mortgagee from time Lessee (subject to time which constitute insurance proceeds in respect the terms of any damage to or destruction or condemnation Section 13.1(c)(ii) hereof) for the reconstruction, refurbishment and repair of the Mortgaged affected Property, and (y) if the use, access, occupancy, easement rights or title to any Property or any part thereofthereof is the subject of a Condemnation during the Lease Term for such Property, condemnation awards then any award or compensation covering the Mortgaged Property (less the actual costs, fees and expenses incurred in the collection thereof), proceeds from the Special Risk Policy shall be held by the Mortgagee as part of the Mortgaged Property and shall be applied by the Mortgagee as follows:
(i) if a casualty occurs which results in a termination of the Lease, or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 of this Mortgage, such proceeds, award or compensation, as the case may be, shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to the date of payment upon the terms and in the manner provided in Section 2.12 of this Mortgage, and the balance, if any, of any such proceeds relating thereto shall be paid to the CompanyLessee; or
provided, however, that, in each case, if (iiA) any Lease Event of Default shall have occurred and be continuing or (B) such Casualty or Condemnation is an Event of Loss (or if a the proceeds of casualty insurance exceeds $500,000 as set forth in Section 13.l(c)(ii) hereof), then such award, compensation or condemnation occurs which does not result in insurance proceeds shall be paid directly to the termination Administrative Agent (as assignee of the Lease and Lessor) or, if received by the Company or the Tenant Lessee, shall be required to repair, rebuild or restore held in trust for the Mortgaged Property as required pursuant to the Lease, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards Participants and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee Lessee to the Company (or Administrative Agent to be distributed by the Administrative Agent as the Company may direct from time to time) upon a written application of the Company and accompanied by such evidence follows: in reasonable detail as may be satisfactory to the Mortgagee supporting such application for the purpose of paying, or reimbursing the Company for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding or restoring part or all of the Mortgaged Property damaged, destroyed or taken (“Restoration”), but only for and to the extent that the Company shows by such evidence of costs that the proceeds, award or compensation (“Restoration Funds”) remaining on deposit with the Mortgagee, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee for such purpose, shall be sufficient to complete such Restoration and restore the Mortgaged Property (as nearly as practicable) at least to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment of such proceeds, award or compensation shall state that no a Lease Event of Default has occurred and is continuing. Any proceeds in excess of the amount needed for Restoration remaining after the Restoration has been completed shall be (i) if the amount of rent payable under the Lease has been reduced as a result of such condemnation or casualtyDefault, such amounts shall be held by distributed in accordance with the Mortgagee Participation Agreement, and at in the option case of the Mortgagee either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or an Event of Default is then existingLoss, such amounts shall be disbursed applied in the Lessor’s and the Administrative Agent’s reasonable discretion (which shall include customary methods, practices, requirements and standards as typically exist in construction loans) to the Company. The Mortgagee shall receive a supplement hereto sufficient, as insured by appropriate title insurance acceptable to the Beneficiary.
(b) Subject to Section 2.15(b) hereof with respect to adjustments of losses, any appraisal or adjustment restoration of such loss Property or any settlement or toward the payment of indemnity therefor which shall be agreed upon between the Company and applicable Property Cost of the relevant insurance company shall be accepted by affected Property on the Mortgageeapplicable Partial Termination Date in accordance with Section 15.1.
Appears in 1 contract
Insurance Proceeds and Condemnation Awards. (a) Subject All proceeds of fire and extended coverage insurance and of condemnation awards covering the Granted Property equal to Section 4.4 hereof, the amounts or in excess of $100,000 received by the Indenture Trustees under the provisions of this Deed of Trust and/or the Indenture or payable to any instruments supplemental hereto or thereto, or under any policy or policies of insurance covering the Mortgagee from time to time which constitute insurance proceeds in respect of any damage to or destruction or condemnation of the Mortgaged Granted Property or any part thereof, condemnation awards or compensation covering the Mortgaged Property (less the actual costs, fees and expenses incurred in the collection thereof), proceeds from the Special Risk Policy shall be held by the Mortgagee Indenture Trustees as part of the Mortgaged Granted Property and shall be applied by the Mortgagee Indenture Trustees as follows:
(i) if a casualty occurs which results in a termination If the total amount of the Lease, any one loss or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 of this Mortgage, such proceeds, award or compensationtaking, as the case may be, shall be applied in payment equal or exceed $100,000 and satisfaction the Cost of rebuilding or restoring the Granted Property (as evidenced by an Officers' Certificate of the outstanding Grantor detailing the same) shall be less than the proceeds of insurance or the award or consideration received on account of condemnation or other taking of the Granted Property, the Grantor shall prepay the Notes pursuant to Section 5.3 of the Indenture in a principal and amount equal to such excess, together with interest accrued interest on the Note Notes to be prepaid to the date of payment and a premium equal to the Yield-Maintenance Premium, upon the terms and in the manner provided in Section 2.12 5.3 of this Mortgage, the Indenture and the balance, if any, of any such proceeds shall be paid released to or upon the Companyorder of the Grantor in accordance with clause (ii) below. Any application of moneys pursuant to this section 4.1(a)(i) shall be made by the Grantor within 60 days after the completion of the rebuilding or restoration of the Granted Property; orand
(ii) if a casualty If the total amount in the case of any one loss or condemnation occurs which does not result in or taking, as the termination of the Lease and the Company case may be, shall equal or the Tenant shall be required to repairexceed $100,000, rebuild or restore the Mortgaged Property as required pursuant to the Lease, all casualty insurance such proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee to the Company (or as the Company may direct Grantor from time to time) time upon a written application signed by the President and any Vice President of the Company Grantor and accompanied by such evidence in reasonable detail as may be satisfactory to an approving certificate of an architect or engineer selected by the Mortgagee supporting such application Grantor and approved by the Indenture Trustees, for the purpose of paying, or reimbursing the Company Grantor for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding repairing or restoring replacing part or all of the Mortgaged Property damaged, destroyed property damaged or taken (“Restoration”)destroyed, but only if written application is made therefor within 12 months of the receipt of such proceeds by the Indenture Trustees, and then only for and to the extent that the Company Grantor shows by such architect's or engineer's certificates or other evidence of costs satisfactory to the Indenture Trustees that the proceeds, award or compensation (“Restoration Funds”) portion of such proceeds remaining on deposit with the MortgageeIndenture Trustees, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee Indenture Trustees for such purpose, shall be sufficient to complete such Restoration repairs or replacements and restore the Mortgaged Granted Property (as nearly as practicable) at least possible to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except this Deed of Trust and Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment of such proceeds, award insurance or compensation condemnation moneys shall state that no Default or Event of Default has occurred and is continuing. Any proceeds in excess continuing and shall be accompanied by a date down endorsement to the lender's title insurance policy being delivered pursuant to Section 7(a)(iv) of the amount needed Note Agreement insuring that, as of the date of such payment, the property will be subject to the lien of this Deed of Trust as a first lien thereon subject only to Permitted Encumbrances. The Grantor will remain solely responsible for Restoration remaining after the Restoration has been completed shall be rebuilding, restoration or substitution of the Granted Property, whether or not the proceeds of insurance maintained in accordance with the provisions hereof are sufficient therefor.
(ib) if In cases involving insurance proceeds where the amount of rent payable under the Lease has been reduced as a result of such condemnation or casualty, such amounts shall be held by the Mortgagee any one loss is less than $100,000 and at the option of the Mortgagee either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default is then existingshall have occurred and be continuing under this Deed of Trust, the amount payable in respect of any such amounts loss will be received by the Indenture Trustees and shall be disbursed by the Indenture Trustees paid over immediately to the Company. The Mortgagee shall receive a supplement hereto sufficient, as insured Grantor for use by appropriate title insurance acceptable to the BeneficiaryGrantor in paying for replacement or repair of or substitutes for the damaged or destroyed property.
(bc) Subject to Section 2.15(bsection 2.6(e) hereof with respect to adjustments of losses, any appraisal or adjustment of such loss or any settlement or payment of indemnity therefor which shall be agreed upon between the Company Grantor and the relevant insurance company shall be accepted by the MortgageeIndenture Trustees.
(d) In the event the insurance moneys or condemnation award, as the case may be, shall not have been applied to one or more of the purposes specified in section 4.1(a) hereof within the 12-month period provided for thereby, then the Indenture Trustees shall apply such insurance moneys or condemnation award, as the case may be, to the prepayment, with premium, of the Notes together with interest accrued thereon in an amount sufficient to exhaust such cash as nearly as may be upon giving the Grantor 10 days' advance notice of its intent so to do, such prepayment to be made in units of $1,000 but otherwise to be made ratably on all outstanding Notes in accordance with the principal amounts unpaid thereon, together with interest accrued thereon and a premium equal to the Yield-Maintenance Premium; any balance remaining after such prepayment to be released to the Grantor. Partial prepayments made pursuant to this section 4.1(d) shall be paid and applied upon the terms and in the manner provided in Section 5 of the Indenture.
Appears in 1 contract
Samples: Deed of Trust and Security Agreement (Ramsay Health Care Inc)
Insurance Proceeds and Condemnation Awards. (a) Subject to Section 4.4 hereof, The Borrower shall notify the amounts received by or payable to Authority and the Mortgagee from time to time which constitute insurance proceeds in respect Trustee promptly of the occurrence of any damage to or destruction destruction, condemnation or conveyance in lieu of condemnation of the Mortgaged Property all or any part thereofportion of its Property, Plant and Equipment. All insurance proceeds, condemnation awards award or compensation covering the Mortgaged Property (less the actual costs, fees and expenses incurred in the collection thereof), proceeds from the Special Risk Policy shall be held by the Mortgagee other similar sums received as part a result of the Mortgaged Property and any such occurrence shall be applied by the Mortgagee as follows:
(a) At the election of the Borrower, such amounts may be used:
(i) if a casualty occurs which results in a termination to pay the cost of reconstructing, replacing or repairing the Lease, or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 of this Mortgage, such proceeds, award or compensation, as the case may be, shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to the date of payment upon the terms and in the manner provided in Section 2.12 of this Mortgage, and the balance, if any, of any such proceeds shall be paid to the Companyaffected Property; or
(ii) to pay the Redemption Price of Bonds upon Extraordinary Redemption if the Project cannot be reasonably restored within a casualty period of 12 months from the date of such damage or condemnation occurs which does not result destruction to the condition thereof immediately preceding such damage or destruction or the Borrower is prevented from carrying on its normal operations in connection with the termination Project for a period of 12 months from the date of such damage or destruction or the restoration cost of the Lease Project would exceed the total amount of all insurance proceeds including any deductible amount with respect to such damage or destruction. The foregoing determinations shall be set forth in a Borrower Certificate delivered to the Authority and the Company Trustee as soon as practicable after the occurrence to which it relates. Such Certificate shall be supported by such additional Certificates (including an Architect’s Certificate or Consultant’s Certificate) as the Authority or the Tenant shall be required to repair, rebuild or restore the Mortgaged Property as required pursuant to the Lease, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee to the Company (or as the Company Trustee may direct from time to time) upon a written application of the Company and accompanied by such evidence in reasonable detail as may be satisfactory to the Mortgagee supporting such application for the purpose of paying, or reimbursing the Company for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding or restoring part or all of the Mortgaged Property damaged, destroyed or taken (“Restoration”), but only for and to the extent that the Company shows by such evidence of costs that the proceeds, award or compensation (“Restoration Funds”) remaining on deposit with the Mortgagee, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee for such purpose, shall be sufficient to complete such Restoration and restore the Mortgaged Property (as nearly as practicable) at least to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment of such proceeds, award or compensation shall state that no Event of Default has occurred and is continuing. Any proceeds in excess of the amount needed for Restoration remaining after the Restoration has been completed shall be (i) if the amount of rent payable under the Lease has been reduced as a result of such condemnation or casualty, such amounts shall be held by the Mortgagee and at the option of the Mortgagee either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default is then existing, such amounts shall be disbursed to the Company. The Mortgagee shall receive a supplement hereto sufficient, as insured by appropriate title insurance acceptable to the Beneficiaryreasonably request.
(b) Subject to Section 2.15(bIf the Borrower determines in good faith that the conditions set forth in subsection (a) hereof above cannot be satisfied with respect to adjustments any proposed action, it shall deliver a Borrower Certificate to such effect to the Trustee, and the insurance proceeds, condemnation award or other similar sum shall be required to be used to pay the Redemption Price of lossesBonds upon Extraordinary Redemption.
(c) Moneys to be used for any reconstruction, replacement or repair pursuant to subsection (a) above shall be deposited in the Project Fund for such purpose and shall be disbursed by the Trustee upon requisition of the Borrower in substantially the manner set forth in Section 402 of the Indenture. The balance of any appraisal or adjustment moneys so deposited after completion of such loss reconstruction, replacement or any settlement or payment repair (as evidenced to the Trustee by a Certificate of indemnity therefor which the Borrower) shall be agreed upon between released to the Company and the relevant insurance company Borrower for its unrestricted use. Moneys to be used to redeem Bonds pursuant to subsection (a) or (b) above shall be accepted by deposited in the MortgageeRedemption Fund for such purpose.
Appears in 1 contract
Samples: Mortgage (Converted Organics Inc.)
Insurance Proceeds and Condemnation Awards. (a) Subject All proceeds of fire and extended coverage insurance and of condemnation awards covering the Granted Property equal to Section 4.4 hereof, the amounts or in excess of $100,000 received by the Trustee under the provisions of this Deed of Trust and/or the Indenture or payable to any instruments supplemental hereto or thereto, or under any policy or policies of insurance covering the Mortgagee from time to time which constitute insurance proceeds in respect of any damage to or destruction or condemnation of the Mortgaged Granted Property or any part thereof, condemnation awards or compensation covering the Mortgaged Property (less the actual costs, fees and expenses incurred in the collection thereof), proceeds from the Special Risk Policy shall be held by the Mortgagee Indenture Trustees as part of the Mortgaged Granted Property and shall be applied by the Mortgagee Indenture Trustees as follows:
(i) if a casualty occurs which results in a termination If the total amount of the Lease, any one loss or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Company shall be required to prepay the Note pursuant to Section 2.12 of this Mortgage, such proceeds, award or compensationtaking, as the case may be, shall be applied in payment equal or exceed $100,000 and satisfaction the Cost of rebuilding or restoring the Granted Property (as evidenced by an Officers' Certificate of the outstanding Grantor detailing the same) shall be less than the proceeds of insurance or the award or consideration received on account of condemnation or other taking of the Granted Property, the Grantor shall prepay the Notes pursuant to Section 3.3 of the Indenture in a principal and amount equal to such excess, together with interest accrued interest on the Note Notes to be prepaid to the date of payment and premium equal to the Yield-Maintenance Premium, upon the terms and in the manner provided in Section 2.12 5.3 of this Mortgage, the Indenture and the balance, if any, of any such proceeds shall be paid released to or upon the Companyorder of the Grantor in accordance with clause (ii) below. Any application of moneys pursuant to his section 4.1(m)(i) shall be made by the Grantor within 60 days after the completion of the rebuilding or restoration of the Granted Property; orand
(ii) if a casualty If the total amount in the case of any one loss or condemnation occurs which does not result in or taking, as the termination of the Lease and the Company case may be, shall equal or the Tenant shall be required to repairexceed $100,000, rebuild or restore the Mortgaged Property as required pursuant to the Lease, all casualty insurance such proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Mortgagee to the Company (or as the Company may direct Grantor from time to time) time upon a written application signed by the President and any Vice President of the Company Grantor and accompanied by such evidence in reasonable detail as may be satisfactory to an approving certificate of an architect or engineer selected by the Mortgagee supporting such application Grantor and approved by the Indenture Trustees, for the purpose of paying, or reimbursing the Company Grantor for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding repairing or restoring replacing part or all of the Mortgaged Property damagedproperty, destroyed damaged or taken (“Restoration”)destroyed, but only if written application is made therefore within 12 months of the receipt of such proceeds by the Indenture Trustees, and then only for and an to the extent that the Company Grantor shows by such architect's or engineer's certificates or other evidence of costs satisfactory to the Indenture Trustees that the proceeds, award or compensation (“Restoration Funds”) portion of such proceeds remaining on deposit with the MortgageeIndenture Trustees, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Mortgagee Indenture Trustees for such purpose, shall be sufficient to complete such Restoration repairs or replacements and restore the Mortgaged Granted Property (as nearly as practicable) at least possible to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from form liens or encumbrances except this Deed of Trust and Permitted Encumbrances. The Company shall deliver to the Mortgagee any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment of f such proceeds, award insurance or compensation condemnation moneys shall state that no Default or Event of Default has occurred and is continuing. Any proceeds in excess continuing and shall be accompanied by a date down endorsement to the lender's title insurance policy being delivered pursuant to Section 7(a)(iv) of the amount needed Note Agreement insuring that, as of the date of such payment, the property will be subject to the lien of this Deed of Trust as a first lien thereon subject only to Permitted Encumbrances. The Grantor will remain solely responsible for Restoration remaining after the Restoration has been completed shall be rebuilding, restoration or substitution of the Granted Property, whether or not the proceeds of insurance maintained in accordance with the provisions hereof are sufficient therefor.
(ib) if In cases involving insurance proceeds where the amount of rent payable under the Lease has been reduced as a result of such condemnation or casualty, such amounts shall be held by the Mortgagee any one loss is less than $100,00 and at the option of the Mortgagee either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Company under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest then due on the Note (provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation or casualty and so long as no Default or Event of Default is then existingshall have occurred and be continuing under this Deed of Trust, the amount payable in respect of any such amounts loss will be received by the Indenture Trustees and shall be disbursed by the Indenture Trustees paid over immediately to the Company. The Mortgagee shall receive a supplement hereto sufficient, as insured Grantor for use by appropriate title insurance acceptable to the BeneficiaryGrantor in paying for replacement or repair of or substitutes for the damaged or destroyed property.
(bc) Subject to Section 2.15(bsection 2.6(e) hereof with respect to adjustments of losses, any appraisal or adjustment of such loss or any settlement or payment of indemnity therefor therefore which shall be agreed upon between the Company Grantor and the relevant insurance company shall be accepted by the MortgageeIndenture Trustees.
(d) In the event the insurance moneys or condemnation award, as the case may be, shall not have been applied to one or more of the purposes specified in section 4.1(a) hereof within the 12-month period provided for thereby, then Indenture Trustees shall apply such insurance moneys or condemnation award, as the case may be, to the prepayment, with premium, of the Notes together with interest accrued thereon in an amount sufficient to exhaust such cash as nearly as may be upon giving the Grantor 10 days's advance notice of its intent so to do, such prepayment to be made in units of $1,000 but otherwise to be made ratably on all outstanding Notes in accordance with the principal amounts unpaid thereon, together with interest accrued thereon and a premium equal to the Yield-Maintenance Premium; any balance remaining after such prepayment to be released to the Grantor. Partial prepayments made pursuant to this section 4.1(d) shall be paid and applied upon the terms and in the manner provided in Section 5 of the Indenture.
Appears in 1 contract
Samples: Leasehold Deed of Trust, Assignment of Rents and Security Agreement (Ramsay Health Care Inc)
