Insurance Proceeds and Condemnation Awards. (a) In the event of any loss or damage to any portion of any Borrowing Base Property due to fire or other casualty, or any taking of any portion of any Borrowing Base Property by condemnation or under power of eminent domain, the Administration Agent shall have the right, but not the obligation, to settle insurance claims and condemnation claims or awards, unless the loss or damage is less than $1,000,000.00. If (i) the loss or damage is less than $1,000,000.00, or (ii) the Administrative Agent elects not to settle such claim or award, then the applicable Borrower shall have the right to settle such claim or award without the consent of Lender; provided that (A) such Borrower shall use the proceeds of any claim or award to rebuild or restore the applicable Borrowing Base Property substantially to its condition prior to the casualty or condemnation to the extent permitted by Laws and (B) such Borrower shall provide the Administrative Agent with notice of the casualty or condemnations. Failure to use the insurance proceeds received directly from the insurance company to rebuild and restore shall constitute an Event of Default. Notwithstanding the foregoing, provided that the conditions set forth in (A) and (B) above are satisfied and so long as each of the following (1) through (4) is satisfied, the Borrowers shall have the right to settle claims or awards for more than $1,000,000.00, provided that the Administrative Agent shall have the right to settle any claim or award that the Borrowers have not settled on or before one year after the date of such loss or prior to the date of such taking. If (1) no Event of Default exists under this Agreement or the other Loan Documents; (2) no monetary Event of Default has occurred during the preceding twelve (12) months; (3) the proceeds or awards received by the Administrative Agent, together with any additional funds deposited with the Administrative Agent by the Borrowers, are sufficient, in the Administrative Agent’s reasonable discretion, either to restore the affected Borrowing Base Property substantially to its condition before the casualty or to remedy the condemnation; and (4) the Borrowing Base Property will continue to qualify as a Borrowing Base Property following the completion of any such repairs or restoration, then the Borrowers shall be entitled to use the insurance or condemnation proceeds to rebuild the affected Borrowing Base Property or to remedy the effect of the condemnation, as the case may be. In all other cases, the Administrative Agent shall have the right (but not the obligation) to collect, retain and apply to the Indebtedness all insurance and condemnation proceeds (after deduction of all expense of collection and settlement, including reasonable attorney and adjusters’ fees and expenses). Any proceeds remaining after application to the Indebtedness shall be paid by the Administrative Agent to the Borrowers or the party then entitled thereto. (b) If the Administrative Agent does not elect to or is not entitled to apply casualty proceeds or condemnation awards to the Indebtedness and if the Borrowers are not entitled to settle such claims, all as provided under Section 7.19(a), the Administrative Agent shall have the right (but not the obligation) to settle, collect and retain such proceeds, and after deduction of all reasonable expenses of collection and settlement, including reasonable attorney and adjusters’ fees and expenses, to release the same to the applicable Borrower periodically, provided that such Borrower shall: (i) expeditiously repair and restore all damage to the portion of the Borrowing Base Property in question resulting from such casualty or condemnation, including completion of the construction if such fire or other casualty shall have occurred prior to completion, so that the Borrowing Base Property continue to qualify as a Borrowing Base Property following such construction; and (ii) if the casualty proceeds or condemnation awards are, in the Administrative Agent’s reasonable judgment, insufficient to complete the repair and restoration of the buildings, structures and other improvements constituting the Borrowing Base Property as aforesaid, then the Borrowers shall promptly deposit with the Administrative Agent the amount of such deficiency. Any request by a Borrower for a disbursement by the Administrative Agent of casualty proceeds or condemnation awards by the Borrowers pursuant to this Section 7.19 and the disbursement thereof shall be conditioned upon the Borrowers’ compliance with and satisfaction of the same conditions precedent as would be applicable in connection with construction loans made by institutional lenders for projects similar to the affected Borrowing Base Property, including approval of plans and specifications, submittal of evidence of completion, updated title insurance, lien waivers, and other customary safeguards.
Appears in 2 contracts
Samples: Credit Agreement (Government Properties Income Trust), Credit Agreement (Government Properties Income Trust)
Insurance Proceeds and Condemnation Awards. (ai) In the event of any loss or damage to any portion of any Borrowing Base Property Asset due to fire or other casualty, or any taking of any portion of any Borrowing Base Property Asset by condemnation or under power of eminent domaindomain and provided that the Borrower does not designate the Borrowing Base Asset suffering such loss as a non-Borrowing Base Asset in accordance with Section 5.02(e), the Administration Collateral Agent shall have the right, but not the obligation, after the occurrence and during the continuation of an Event of Default, to settle insurance claims and condemnation claims or awards, unless the loss or damage is less than $1,000,000.005,000,000. If (iA) the loss or damage is less than $1,000,000.00, 5,000,000 or (iiB) if the Administrative Collateral Agent elects not to settle such claim or award, then the applicable Borrower Loan Party shall have the right to settle such claim or award without the consent of Lender; the Collateral Agent, provided that (A1) such Borrower Loan Party shall use the proceeds of any claim or award to rebuild or restore the applicable Borrowing Base Property Asset substantially to its condition prior to the casualty or condemnation to the extent permitted by Laws applicable law and (B2) such Borrower Loan Party shall provide the Administrative Collateral Agent with notice of the casualty or condemnationscondemnation. Failure In all other cases, the applicable Loan Party shall not settle such claim or award without the prior or concurrent written consent of the Collateral Agent. So long as such Borrowing Base Asset remains a Borrowing Base Asset, failure to use the insurance proceeds received directly from the insurance company to rebuild and restore the Borrowing Base Asset shall constitute an Event of Default. Notwithstanding the foregoing, provided that the conditions set forth in (A) and (B) above are satisfied and so long as each of the following (1) through (4) is satisfied, the Borrowers shall have the right to settle claims or awards for more than $1,000,000.00, provided that the Administrative Agent shall have the right to settle any claim or award that the Borrowers have not settled on or before one year after the date of such loss or prior to the date of such taking. If (1) no Event of Default exists under this Agreement or the other Loan Documents; (2) no monetary Event of Default has occurred during the preceding twelve (12) months; (3) the proceeds or awards received by the Administrative Agent, together with any additional funds deposited with the Administrative Agent by the Borrowers, are sufficient, in the Administrative Agent’s reasonable discretion, either to restore the affected Borrowing Base Property substantially to its condition before the casualty or to remedy the condemnation; and (4) the Borrowing Base Property will continue to qualify as a Borrowing Base Property following the completion of any such repairs or restoration, then the Borrowers shall be entitled to use the insurance or condemnation proceeds to rebuild the affected Borrowing Base Property or to remedy the effect of the condemnation, as the case may be. In all other cases, the Administrative The Collateral Agent shall have the right (but not the obligation) to collect, retain and apply to the Indebtedness Obligations all insurance and condemnation proceeds (after deduction of all expense of collection and settlement, including reasonable attorney and adjusters’ fees and expenses) in the event that an Event of Default exists under this Agreement or the other Loan Documents or the Borrowing Base Asset no longer meets the Borrowing Base Conditions (other than as a result of such loss or damage). Otherwise, all proceeds shall be delivered to the Borrower. Any proceeds remaining after application to the Indebtedness Obligations shall be paid by the Administrative Collateral Agent to the Borrowers Borrower or the party then entitled thereto.
(bii) If Provided that the Administrative Borrower has not designated the affected asset as a non-Borrowing Base Asset in accordance with Section 5.02(e), if the Collateral Agent does not elect to or is not entitled to apply casualty proceeds or condemnation awards to the Indebtedness Obligations and if the Borrowers Loan Parties are not entitled to settle such claims, all as provided under Section 7.19(athe foregoing subsection (i), the Administrative Collateral Agent shall have the right (but not the obligation) to settle, collect and retain such proceeds, and after deduction of all reasonable expenses of collection and settlement, including reasonable attorney and adjusters’ fees and expenses, to release the same to the applicable Borrower Loan Party periodically, provided that such Borrower Loan Party shall:
(iA) expeditiously repair and restore all damage to the portion of the Borrowing Base Property Asset in question resulting from such casualty or condemnation, including completion of the construction if such fire or other casualty shall have occurred prior to completion, so that the Borrowing Base Property continue Asset continues to qualify as a Borrowing Base Property Asset following such construction; and
(iiB) if the casualty proceeds or condemnation awards are, in the Administrative Collateral Agent’s reasonable judgment, insufficient to complete the repair and restoration of the buildings, structures and other improvements constituting the Borrowing Base Property Asset as aforesaid, then the Borrowers Loan Parties shall promptly deposit with the Administrative Collateral Agent the amount of such deficiency. Any request by a Borrower Loan Party for a disbursement by the Administrative Collateral Agent of casualty proceeds or condemnation awards by the Borrowers Borrower pursuant to this Section 7.19 5.01(s) and the disbursement thereof shall be conditioned upon the BorrowersLoan Parties’ compliance with and satisfaction of the same conditions precedent as would be applicable in connection with construction loans made by institutional lenders for projects similar to the affected Borrowing Base PropertyAsset, including approval of plans and specifications, submittal of evidence of completion, updated title insurance, lien waivers, and other customary safeguards.
Appears in 2 contracts
Samples: Credit Agreement (Five Star Senior Living Inc.), Credit Agreement (Five Star Quality Care, Inc.)
Insurance Proceeds and Condemnation Awards. (ai) In the event of any loss or damage to any portion of any Borrowing Base Property Asset due to fire or other casualty, or any taking of any portion of any Borrowing Base Property Asset by condemnation or under power of eminent domaindomain and provided that Borrower does not designate the Borrowing Base Asset suffering such loss as a non-Borrowing Base Asset in accordance with Section 5.02(e), the Administration Administrative Agent shall have the right, but not the obligation, after the occurrence and during the continuation of an Event of Default, to settle insurance claims and condemnation claims or awards, unless the loss or damage is less than $1,000,000.001,000,000. If (iA) the loss or damage is less than $1,000,000.00, 1,000,000 or (iiB) if the Administrative Agent elects not to settle such claim or award, then the applicable Borrower Loan Party shall have the right to settle such claim or award without the consent of Lenderthe Administrative Agent; provided that (A1) such Borrower Loan Party shall use the proceeds of any claim or award to rebuild or restore the applicable Borrowing Base Property Asset substantially to its condition prior to the casualty or condemnation to the extent permitted by Laws applicable law and (B2) such Borrower Loan Party shall provide the Administrative Agent with notice of the casualty or condemnationscondemnation. Failure In all other cases, the applicable Loan Party shall not settle such claim or award without the prior or concurrent written consent of the Administrative Agent. So long as such Borrowing Base Asset remains a Borrowing Base Asset, failure to use the insurance proceeds received directly from the insurance company to rebuild and restore the Borrowing Base Asset shall constitute an Event of Default. Notwithstanding the foregoing, provided that the conditions set forth in (A) and (B) above are satisfied and so long as each of the following (1) through (4) is satisfied, the Borrowers shall have the right to settle claims or awards for more than $1,000,000.00, provided that the The Administrative Agent shall have the right to settle any claim or award that the Borrowers Loan Parties have not settled on or before one year after the date of such loss or prior to the date of such taking. If (1) no Event of Default exists under this Agreement or the other Loan Documents; (2) no monetary Event of Default has occurred during the preceding twelve (12) months; (3) the proceeds or awards received by the Administrative Agent, together with any additional funds deposited with the Administrative Agent by the Borrowers, are sufficient, in the Administrative Agent’s reasonable discretion, either to restore the affected Borrowing Base Property substantially to its condition before the casualty or to remedy the condemnation; and (4) the Borrowing Base Property will continue to qualify as a Borrowing Base Property following the completion of any such repairs or restoration, then the Borrowers shall be entitled to use the insurance or condemnation proceeds to rebuild the affected Borrowing Base Property or to remedy the effect of the condemnation, as the case may be. In all other cases, the The Administrative Agent shall have the right (but not the obligation) to collect, retain and apply to the Indebtedness Obligations all insurance and condemnation proceeds (after deduction of all expense of collection and settlement, including reasonable attorney and adjusters’ fees and expenses)) in the event that an Event of Default exists under this Agreement or the other Loan Documents or the Borrowing Base Asset no longer meets the Borrowing Base Conditions. Otherwise, all proceeds shall be delivered to the Borrower. Any proceeds remaining after application to the Indebtedness Obligations shall be paid by the Administrative Agent to the Borrowers Borrower or the party then entitled thereto.
(bii) If Provided that the Borrower has not designated the affected asset as a non-Borrowing Base Asset in accordance with Section 5.02(e), if the Administrative Agent does not elect to or is not entitled to apply casualty proceeds or condemnation awards to the Indebtedness Obligations and if the Borrowers Loan Parties are not entitled to settle such claims, all as provided under Section 7.19(athe foregoing subsection (i), the Administrative Agent shall have the right (but not the obligation) to settle, collect and retain such proceeds, and after deduction of all reasonable expenses of collection and settlement, including reasonable attorney and adjusters’ fees and expenses, to release the same to the applicable Borrower Loan Party periodically, provided that such Borrower Loan Party shall:
(iA) expeditiously repair and restore all damage to the portion of the Borrowing Base Property Asset in question resulting from such casualty or condemnation, including completion of the construction if such fire or other casualty shall have occurred prior to completion, so that the Borrowing Base Property Asset continue to qualify as a Borrowing Base Property Asset following such construction; and
(iiB) if the casualty proceeds or condemnation awards are, in the Administrative Agent’s reasonable judgment, insufficient to complete the repair and restoration of the buildings, structures and other improvements constituting the Borrowing Base Property Asset as aforesaid, then the Borrowers Loan Parties shall promptly deposit with the Administrative Agent the amount of such deficiency. Any request by a Borrower Loan Party for a disbursement by the Administrative Agent of casualty proceeds or condemnation awards by the Borrowers Borrower pursuant to this Section 7.19 5.01(x) and the disbursement thereof shall be conditioned upon the BorrowersLoan Parties’ compliance with and satisfaction of the same conditions precedent as would be applicable in connection with construction loans made by institutional lenders for projects similar to the affected Borrowing Base PropertyAsset, including approval of plans and specifications, submittal of evidence of completion, updated title insurance, lien waivers, and other customary safeguards.
Appears in 1 contract
Insurance Proceeds and Condemnation Awards. (a) In the event of any loss or damage to any portion of any Borrowing Base Property due to fire or other casualty, or any taking of any portion of any Borrowing Base Property by condemnation or under power of eminent domain, the Administration Agent shall have the right, but not the obligation, so long as any Default or Event of Default exists to settle insurance claims and condemnation claims or awards, unless the loss or damage is less than the greater of (i) $1,000,000.0010,000,000.00 and (ii) ten percent (10%) of the “as is” appraised value of such Borrowing Base Property. If no Default or Event of Default exists and (i) the loss or damage is less than the greater of (i) $1,000,000.0010,000,000.00 and (ii) ten percent (10%) of the “as is” appraised value of such Borrowing Base Property, or (iiiii) the Administrative Agent elects not to settle such claim or award, then the applicable Borrower Borrowing Base Entity shall have the right to settle such claim or award without the consent of Lenderthe Administrative Agent or the Required Lenders; provided that (A) such Borrower Borrowing Base Entity shall use the proceeds of any claim or award to rebuild or restore the applicable Borrowing Base Property substantially to its condition prior to the casualty or condemnation to the extent permitted by Laws and (B) such Borrower Borrowing Base Entity shall provide the Administrative Agent with notice of the casualty or condemnations. Failure to use the insurance proceeds received directly from the insurance company to rebuild and restore shall constitute an Event of Default. Notwithstanding the foregoing, provided that the conditions set forth in (A) and (B) above are satisfied and so long as each of the following (1) through (4) is satisfied, the Borrowers Loan Parties shall have the right to settle claims or awards for more than $1,000,000.0010,000,000.00, provided that the Administrative Agent shall have the right to settle any claim or award that the Borrowers Loan Parties have not settled on or before one year after the date of such loss or prior to the date of such taking. If (1) no Event of Default exists hereunder or under this Agreement or the other Loan Documents; (2) no monetary Event of Default has occurred during the preceding twelve (12) months; (3) the proceeds or awards received by the Administrative Agent, together with any additional funds deposited with the Administrative Agent by the BorrowersLoan Parties, are sufficient, in the Administrative Agent’s reasonable discretion, either to restore the affected Borrowing Base Property substantially to its condition before the casualty or to remedy the condemnation; and (4) the Borrowing Base Property will continue to qualify as a Borrowing Base Property following the completion of any such repairs or restoration, then the Borrowers applicable Borrowing Base Entity shall be entitled to use the insurance or condemnation proceeds to rebuild the affected Borrowing Base Property or to remedy the effect of the condemnation, as the case may be. In all other cases, the Administrative Agent shall have the right (but not the obligation) to collect, retain and apply to the Indebtedness all insurance and condemnation proceeds (after deduction of all expense of collection and settlement, including reasonable attorney and adjusters’ fees and expenses). Any proceeds remaining after application to the Indebtedness shall be paid by the Administrative Agent to the Borrowers Borrower or the party then entitled thereto.
(b) If the Administrative Agent does not elect to or is not entitled to apply casualty proceeds or condemnation awards to the Indebtedness and if the Borrowers Loan Parties are not entitled to settle such claims, all as provided under Section 7.19(a), the Administrative Agent shall have the right (but not the obligation) to settle, collect and retain such proceeds, and after deduction of all reasonable expenses of collection and settlement, including reasonable attorney and adjusters’ fees and expenses, to release the same to the Borrower (or the applicable Borrower Borrowing Base Entity, at the instruction of the Borrower) periodically, provided that such the Borrower (or the applicable Borrowing Base Entity) shall:
(i) expeditiously repair and restore all damage to the portion of the Borrowing Base Property in question resulting from such casualty or condemnation, including completion of the construction if such fire or other casualty shall have occurred prior to completion, so that the Borrowing Base Property continue to qualify as a Borrowing Base Property following such construction; and
(ii) if the casualty proceeds or condemnation awards are, in the Administrative Agent’s reasonable judgment, insufficient to complete the repair and restoration of the buildings, structures and other improvements constituting the Borrowing Base Property as aforesaid, then the Borrowers Loan Parties shall promptly deposit with the Administrative Agent the amount of such deficiency. Any request by a Borrower Loan Party for a disbursement by the Administrative Agent of casualty proceeds or condemnation awards by the Borrowers Borrower pursuant to this Section 7.19 and the disbursement thereof shall be conditioned upon the BorrowersLoan Parties’ compliance with and satisfaction of the same conditions precedent as would be applicable in connection with construction loans made by institutional lenders for projects similar to the affected Borrowing Base Property, including approval of plans and specifications, submittal of evidence of completion, updated title insurance, lien waivers, and other customary safeguards.
Appears in 1 contract
Insurance Proceeds and Condemnation Awards. (ai) In the event of any loss or damage to any portion of any Borrowing Base Property Asset due to fire or other casualty, or any taking of any portion of any Borrowing Base Property Asset by condemnation or under power of eminent domaindomain and provided that if such loss or taking of a Borrowing Base Asset is a total AMERICAS/2023134647.11 80 loss or taking of such Borrowing Base Asset following which the Borrower shall not have designated such Borrowing Base Asset as a non-Borrowing Base Asset in accordance with Section 5.02(e), the Administration Collateral Agent shall have the right, but not the obligation, after the occurrence and during the continuation of an Event of Default, to settle insurance claims and condemnation claims or awards. If, unless after the loss or damage is less than $1,000,000.00. If (i) occurrence and during the loss or damage is less than $1,000,000.00continuance of an Event of Default, or (ii) the Administrative Collateral Agent elects not to settle such claim or award, then the applicable Borrower Loan Party shall have the right to settle such claim or award without the consent of Lender; the Collateral Agent, provided that (A1) such Borrower Loan Party shall use the proceeds of any claim or award to rebuild or restore the applicable Borrowing Base Property Asset substantially to its condition prior to the casualty or condemnation to the extent permitted by Laws applicable law and (B2) such Borrower Loan Party shall provide the Administrative Collateral Agent with notice of the casualty or condemnationscondemnation. Failure So long as such Borrowing Base Asset remains a Borrowing Base Asset, failure to use the insurance proceeds received directly from the insurance company to rebuild and restore the Borrowing Base Asset shall constitute an Event of Default. Notwithstanding the foregoing, provided that the conditions set forth in (A) and (B) above are satisfied and so long as each of the following (1) through (4) is satisfied, the Borrowers shall have the right to settle claims or awards for more than $1,000,000.00, provided that the Administrative The Collateral Agent shall have the right to settle any claim or award that the Borrowers Loan Parties have not settled on or before one year after the date of such loss or prior to the date of such taking. If (1) no Event Should any insurance proceeds remain after substantial completion of Default exists under this Agreement or the other Loan Documents; (2) no monetary Event restoration of Default has occurred during the preceding twelve (12) months; (3) the proceeds or awards received by the Administrative Agent, together with any additional funds deposited with the Administrative Agent by the Borrowers, are sufficient, in the Administrative Agent’s reasonable discretion, either to restore the affected Borrowing Base Property substantially to its condition before the casualty or to remedy the condemnation; and (4) the Borrowing Base Property will continue to qualify as a Borrowing Base Property following the completion of any Asset, such repairs or restoration, then the Borrowers Loan Party shall be entitled permitted to use retain such excess insurance proceeds. During the insurance or condemnation proceeds to rebuild the affected Borrowing Base Property or to remedy the effect continuation of the condemnation, as the case may be. In all other casesan Event of Default, the Administrative Collateral Agent shall have the right (but not the obligation) to collect, retain and apply to the Indebtedness Obligations all insurance and condemnation proceeds (after deduction of all expense of collection and settlement, including reasonable attorney and adjusters’ fees and expenses). Otherwise, all proceeds shall be delivered to the Borrower. Any proceeds remaining after application to the Indebtedness Obligations shall be paid by the Administrative Collateral Agent to the Borrowers Borrower or the party then entitled thereto.
(b) If the Administrative Agent does not elect to or is not entitled to apply casualty proceeds or condemnation awards to the Indebtedness and if the Borrowers are not entitled to settle such claims, all as provided under Section 7.19(a), the Administrative Agent shall have the right (but not the obligation) to settle, collect and retain such proceeds, and after deduction of all reasonable expenses of collection and settlement, including reasonable attorney and adjusters’ fees and expenses, to release the same to the applicable Borrower periodically, provided that such Borrower shall:
(i) expeditiously repair and restore all damage to the portion of the Borrowing Base Property in question resulting from such casualty or condemnation, including completion of the construction if such fire or other casualty shall have occurred prior to completion, so that the Borrowing Base Property continue to qualify as a Borrowing Base Property following such construction; and
(ii) if the casualty proceeds or condemnation awards are, in the Administrative Agent’s reasonable judgment, insufficient to complete the repair and restoration of the buildings, structures and other improvements constituting the Borrowing Base Property as aforesaid, then the Borrowers shall promptly deposit with the Administrative Agent the amount of such deficiency. Any request by a Borrower for a disbursement by the Administrative Agent of casualty proceeds or condemnation awards by the Borrowers pursuant to this Section 7.19 and the disbursement thereof shall be conditioned upon the Borrowers’ compliance with and satisfaction of the same conditions precedent as would be applicable in connection with construction loans made by institutional lenders for projects similar to the affected Borrowing Base Property, including approval of plans and specifications, submittal of evidence of completion, updated title insurance, lien waivers, and other customary safeguards.
Appears in 1 contract
Insurance Proceeds and Condemnation Awards. (ai) In the event of any loss or damage to any portion of any Borrowing Base Property Asset due to fire or other casualty, or any taking of any portion of any Borrowing Base Property Asset by condemnation or under power of eminent domaindomain and provided that Borrower does not designate the Borrowing Base Asset suffering such loss as a non-Borrowing Base Asset in accordance with Section 6.8(h), the Administration Administrative Agent shall have the right, but not the obligation, after the occurrence and during the continuation of an Event of Default, to settle insurance claims and condemnation claims or awards, unless the loss or damage is less than $1,000,000.0010% of the Borrowing Base Value of such Borrowing Base Asset. If (iA) the loss or damage is less than $1,000,000.00, 10% of the Borrowing Base Value of such Borrowing Base Asset or (iiB) if the Administrative Agent elects not to settle such claim or award, then the applicable Borrower Credit Party shall have the right to settle such claim or award without the consent of Lenderthe Administrative Agent; provided that (A1) such Borrower Credit Party shall use the proceeds of any claim or award to rebuild or restore the applicable Borrowing Base Property Asset substantially to its condition prior to the casualty or condemnation to the extent permitted by Laws applicable law and (B2) such Borrower Credit Party shall provide the Administrative Agent with notice of the casualty or condemnationscondemnation. Failure In all other cases, the applicable Credit Party shall not settle such claim or award without the prior or concurrent written consent of the Administrative Agent. So long as such Borrowing Base Asset remains a Borrowing Base Asset, failure to use the insurance proceeds received directly from the insurance company to rebuild and restore the Borrowing Base Asset shall constitute an Event of DefaultDefault except to the extent such proceeds are otherwise applied by the Administrative Agent. Notwithstanding the foregoing, provided that the conditions set forth in (A) and (B) above are satisfied and so long as each of the following (1) through (4) is satisfied, the Borrowers shall have the right to settle claims or awards for more than $1,000,000.00, provided that the The Administrative Agent shall have the right to settle any claim or award that the Borrowers Credit Parties have not settled on or before one year after the date of such loss or prior to the date of such taking. If (1) no Event of Default exists under this Agreement or the other Loan Documents; (2) no monetary Event of Default has occurred during the preceding twelve (12) months; (3) the proceeds or awards received by the Administrative Agent, together with any additional funds deposited with the Administrative Agent by the Borrowers, are sufficient, in the Administrative Agent’s reasonable discretion, either to restore the affected Borrowing Base Property substantially to its condition before the casualty or to remedy the condemnation; and (4) the Borrowing Base Property will continue to qualify as a Borrowing Base Property following the completion of any such repairs or restoration, then the Borrowers shall be entitled to use the insurance or condemnation proceeds to rebuild the affected Borrowing Base Property or to remedy the effect of the condemnation, as the case may be. In all other cases, the The Administrative Agent shall have the right (but not the obligation) to collect, retain and apply to the Indebtedness Obligations all insurance and condemnation proceeds (after deduction of all expense of collection and settlement, including reasonable attorney and adjusters’ fees and expenses)) in the event that an Event of Default exists under this Agreement or the other Credit Documents or the Borrowing Base Asset no longer meets the Borrowing Base Conditions. Otherwise, all proceeds shall be delivered to Borrower. Any proceeds remaining after application to the Indebtedness Obligations shall be paid by the Administrative Agent to the Borrowers Borrower or the party then legally entitled thereto.
(bii) If Provided that Borrower has not designated the affected asset as a non-Borrowing Base Asset in accordance with Section 6.8(h), if the Administrative Agent does not elect to or is not entitled to apply casualty proceeds or condemnation awards to the Indebtedness Obligations and if the Borrowers Credit Parties are not entitled to settle such claims, all as provided under Section 7.19(a)the foregoing subsection (i) above, the Administrative Agent shall have the right (but not the obligation) to settle, collect and retain such proceeds, and after deduction of all reasonable expenses of collection and settlement, including reasonable attorney and adjusters’ fees and expenses, to release the same to the applicable Borrower Credit Party periodically, ; provided that such Borrower Credit Party shall:
(i1) expeditiously repair and restore all damage to the portion of the Borrowing Base Property Asset in question resulting from such casualty or condemnation, including completion of the construction if such fire or other casualty shall have occurred prior to completion, so that the Borrowing Base Property Asset continue to qualify as a Borrowing Base Property Asset following such construction; and
(ii2) if the casualty proceeds or condemnation awards are, in the Administrative Agent’s reasonable judgment, insufficient to complete the repair and restoration of the buildings, structures and other improvements constituting the Borrowing Base Property Asset as aforesaid, then the Borrowers Credit Parties shall promptly deposit with the Administrative Agent the amount of such deficiency. Any request by a Borrower Credit Party for a disbursement by the Administrative Agent of casualty proceeds or condemnation awards by the Borrowers Borrower pursuant to this Section 7.19 5.5(b) and the disbursement thereof shall be conditioned upon the BorrowersCredit Parties’ compliance with and satisfaction of the same conditions precedent as would be applicable in connection with construction loans made by institutional lenders for projects similar to the affected Borrowing Base PropertyAsset, including approval of plans and specifications, submittal of evidence of completion, updated title insurance, lien waivers, and other customary safeguards. In the event of any inconsistency between this Section 5.5 and Schedule 5.5 hereto, the terms and conditions set forth in Schedule 5.5 hereto shall govern and control.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Gramercy Property Trust Inc.)
Insurance Proceeds and Condemnation Awards. (ai) In the event of any loss or damage to any portion of any Borrowing Base Property Asset due to fire or other casualty, or any taking of any portion of any Borrowing Base Property Asset by condemnation or under power of eminent domaindomain and provided that Borrower does not designate the Borrowing Base Asset suffering such loss as a non-Borrowing Base Asset in accordance with Section 6.8(h), the Administration Administrative Agent shall have the right, but not the obligation, after the occurrence and during the continuation of an Event of Default, to settle insurance claims and condemnation claims or awards, unless the loss or damage is less than $1,000,000.0010% of the Borrowing Base Value of such Borrowing Base Asset. If (iA) the loss or damage is less than $1,000,000.00, 10% of the Borrowing Base Value of such Borrowing Base Asset or (iiB) if the Administrative Agent elects not to settle such claim or award, then the applicable Borrower Credit Party shall have the right to settle such claim or award without the consent of Lenderthe Administrative Agent; provided that (A1) such Borrower Credit Party shall use the proceeds of any claim or award to rebuild or restore the applicable Borrowing Base Property Asset substantially to its condition prior to the casualty or condemnation to the extent permitted by Laws applicable law and (B2) such Borrower Credit Party shall provide the Administrative Agent with notice of the casualty or condemnationscondemnation. Failure In all other cases, the applicable Credit Party shall not settle such claim or award without the prior or concurrent written consent of the Administrative Agent. So long as such Borrowing Base Asset remains a Borrowing Base Asset, failure to use the insurance proceeds received directly from the insurance company to rebuild and restore the Borrowing Base Asset shall constitute an Event of DefaultDefault except to the extent such proceeds are otherwise applied by the Administrative Agent. Notwithstanding the foregoing, provided that the conditions set forth in (A) and (B) above are satisfied and so long as each of the following (1) through (4) is satisfied, the Borrowers shall have the right to settle claims or awards for more than $1,000,000.00, provided that the The Administrative Agent shall have the right to settle any claim or award that the Borrowers Credit Parties have not settled on or before one year after the date of such loss or prior to the date of such taking. If (1) no Event of Default exists under this Agreement or the other Loan Documents; (2) no monetary Event of Default has occurred during the preceding twelve (12) months; (3) the proceeds or awards received by the Administrative Agent, together with any additional funds deposited with the Administrative Agent by the Borrowers, are sufficient, in the Administrative Agent’s reasonable discretion, either to restore the affected Borrowing Base Property substantially to its condition before the casualty or to remedy the condemnation; and (4) the Borrowing Base Property will continue to qualify as a Borrowing Base Property following the completion of any such repairs or restoration, then the Borrowers shall be entitled to use the insurance or condemnation proceeds to rebuild the affected Borrowing Base Property or to remedy the effect of the condemnation, as the case may be. In all other cases, the The Administrative Agent shall have the right (but not the obligation) to collect, retain and apply to the Indebtedness Obligations all insurance and condemnation proceeds (after deduction of all expense of collection and settlement, including reasonable attorney and adjusters’ fees and expenses)) in the event that an Event of Default exists under this Agreement or the other Credit Documents or the Borrowing Base Asset no longer meets the Borrowing Base Conditions. Otherwise, all proceeds shall be delivered to Borrower. Any proceeds remaining after application to the Indebtedness Obligations shall be paid by the Administrative Agent to the Borrowers Borrower or the party then legally entitled thereto.
(bii) If Provided that Borrower has not designated the affected asset as a non-Borrowing Base Asset in accordance with Section 6.8(h), if the Administrative Agent does not elect to or is not entitled to apply casualty proceeds or condemnation awards to the Indebtedness Obligations and if the Borrowers Credit Parties are not entitled to settle such claims, all as provided under Section 7.19(a)the foregoing subsection (i) above, the Administrative Agent shall have the right (but not the obligation) to settle, collect and retain such proceeds, and after deduction of all reasonable expenses of collection and settlement, including reasonable attorney and adjusters’ fees and expenses, to release the same to the applicable Borrower Credit Party periodically, ; provided that such Borrower Credit Party shall:
(i1) expeditiously repair and restore all damage to the portion of the Borrowing Base Property Asset in question resulting from such casualty or condemnation, including completion of the construction if such fire or other casualty shall have occurred prior to completion, so that the Borrowing Base Property Asset continue to qualify as a Borrowing Base Property Asset following such construction; and
(ii2) if the casualty proceeds or condemnation awards are, in the Administrative Agent’s reasonable judgment, insufficient to complete the repair and restoration of the buildings, structures and other improvements constituting the Borrowing Base Property Asset as aforesaid, then the Borrowers Credit Parties shall promptly deposit with the Administrative Agent the amount of such deficiency. Any request by a Borrower Credit Party for a disbursement by the Administrative Agent of casualty proceeds or condemnation awards by the Borrowers Borrower pursuant to this Section 7.19 5.5(b) and the disbursement thereof shall be conditioned upon the BorrowersCredit Parties’ compliance with and satisfaction of the same conditions precedent as would be applicable in connection with construction loans made by institutional lenders for projects similar to the affected Borrowing Base PropertyAsset, including approval of plans and specifications, submittal of evidence of completion, updated title insurance, lien waivers, and other customary safeguards. In the event of any inconsistency between this Section 5.5 and Schedule 5.5 hereto which schedule shall be in form and substance reasonably acceptable to the Administrative Agent and attached hereto on the Closing Date, the terms and conditions set forth in such Schedule 5.5 hereto shall govern and control.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Gramercy Property Trust Inc.)
Insurance Proceeds and Condemnation Awards. (ai) In the event of any loss or damage to any portion of any Borrowing Base Property Asset due to fire or other casualty, or any taking of any portion of any Borrowing Base Property Asset by condemnation or under power of eminent domain, the Administration Administrative Agent shall have the right, but not the obligation, after the occurrence and during the continuation of an Event of Default, to settle insurance claims and condemnation claims or awards, unless the loss or damage is less than $1,000,000.001,000,000. If (iA) the loss or damage is less than $1,000,000.00, 1,000,000 or (iiB) if the Administrative Agent elects not to settle such claim or award, then the applicable Borrower Loan Party shall have the right to settle such claim or award without the consent of Lenderthe Administrative Agent; provided that (A1) such Borrower Loan Party shall use the proceeds of any claim or award to rebuild or restore the applicable Borrowing Base Property Asset substantially to its condition prior to the casualty or condemnation to the extent permitted by Laws applicable law and (B2) such Borrower Loan Party shall provide the Administrative Agent with notice of the casualty or condemnationscondemnation. Failure In all other cases, the applicable Loan Party shall not settle such claim or award without the prior or concurrent written consent of the Administrative Agent. So long as such Borrowing Base Asset remains a Borrowing Base Asset, failure to use the insurance proceeds received directly from the insurance company to rebuild and restore the Borrowing Base Asset shall constitute an Event of Default. Notwithstanding the foregoing, provided that the conditions set forth in (A) and (B) above are satisfied and so long as each of the following (1) through (4) is satisfied, the Borrowers shall have the right to settle claims or awards for more than $1,000,000.00, provided that the The Administrative Agent shall have the right to settle any claim or award that the Borrowers Loan Parties have not settled on or before one year six months after the date of such loss or prior to the date of such taking. If (1) no Event of Default exists under this Agreement or the other Loan Documents; (2) no monetary Event of Default has occurred during the preceding twelve (12) months; (3) the proceeds or awards received by the Administrative Agent, together with any additional funds deposited with the Administrative Agent by the Borrowers, are sufficient, in the Administrative Agent’s reasonable discretion, either to restore the affected Borrowing Base Property substantially to its condition before the casualty or to remedy the condemnation; and (4) the Borrowing Base Property will continue to qualify as a Borrowing Base Property following the completion of any such repairs or restoration, then the Borrowers shall be entitled to use the insurance or condemnation proceeds to rebuild the affected Borrowing Base Property or to remedy the effect of the condemnation, as the case may be. In all other cases, the The Administrative Agent shall have the right (but not the obligation) to collect, retain and apply to the Indebtedness Obligations all insurance and condemnation proceeds (after deduction of all expense of collection and settlement, including reasonable attorney and adjusters’ fees and expenses)) in the event that an Event of Default exists under this Agreement or the other Loan Documents or the Borrowing Base Asset no longer meets the Borrowing Base Conditions, and the Loan Parties agree to pay any such amounts received by them to Administrative Agent upon demand of Administrative Agent. Otherwise, all proceeds shall be delivered to the Borrower. Any proceeds remaining after application to the Indebtedness Obligations shall be paid by the Administrative Agent to the Borrowers Borrower or the party then entitled thereto.
(bii) If the Administrative Agent does not elect to or is not entitled to apply casualty proceeds or condemnation awards to the Indebtedness Obligations and if the Borrowers Loan Parties are not entitled to settle such claims, all as provided under Section 7.19(athe foregoing subsection (i), the Administrative Agent shall have the right (but not the obligation) to settle, collect and retain such proceeds, and after deduction of all reasonable expenses of collection and settlement, including reasonable attorney and adjusters’ fees and expenses, to release the same to the applicable Borrower Loan Party periodically, provided that such Borrower Loan Party shall:
(iA) expeditiously repair and restore all damage to the portion of the Borrowing Base Property Asset in question resulting from such casualty or condemnation, including completion of the construction if such fire or other casualty shall have occurred prior to completion, so that the Borrowing Base Property Asset continue to qualify as a Borrowing Base Property Asset following such construction; and
(iiB) if the casualty proceeds or condemnation awards are, in the Administrative Agent’s reasonable judgment, insufficient to complete the repair and restoration of the buildings, structures and other improvements constituting the Borrowing Base Property Asset as aforesaid, then the Borrowers Loan Parties shall promptly deposit with the Administrative Agent the amount of such deficiency. Any request by a Borrower Loan Party for a disbursement by the Administrative Agent of casualty proceeds or condemnation awards by the Borrowers Borrower pursuant to this Section 7.19 5.01(x) and the disbursement thereof shall be conditioned upon the BorrowersLoan Parties’ compliance with and satisfaction of the same conditions precedent as would be applicable in connection with construction loans made by institutional lenders for projects similar to the affected Borrowing Base PropertyAsset, including approval of plans and specifications, submittal of evidence of completion, updated title insurance, lien waivers, and other customary safeguards.
Appears in 1 contract
Insurance Proceeds and Condemnation Awards. (a) In the event of any loss or damage to any portion of any Borrowing Base Property due to fire or other casualty, or any taking of any portion of any Borrowing Base Property by condemnation or under power of eminent domain, the Administration Agent shall have the right, but not the obligation, to settle insurance claims and condemnation claims or awards, unless the loss or damage is less than $1,000,000.00250,000.00. If (i) the loss or damage is less than $1,000,000.00250,000.00, or (ii) the Administrative Agent elects not to settle such claim or award, then the applicable Borrower Borrowing Base Entity shall have the right to settle such claim or award without the consent of Lenderthe Administrative Agent or the Required Lenders; provided that (A) such Borrower Borrowing Base Entity shall use the proceeds of any claim or award to rebuild or restore the applicable Borrowing Base Property substantially to its condition prior to the casualty or condemnation to the extent permitted by Laws Laws, and (B) such Borrower Borrowing Base Entity shall provide the Administrative Agent with notice of the casualty or condemnations. Failure to use the insurance proceeds received directly from the insurance company to rebuild and restore shall constitute an Event of Default. Notwithstanding the foregoing, provided that the conditions set forth in (A) and (B) above are satisfied and so long as each of the following (1) through (4) is satisfied, the Borrowers shall have the right to settle claims or awards for more than $1,000,000.00, provided that the Administrative Agent shall have the right to settle any claim or award that the Borrowers have not settled on or before one year after the date of such loss or prior to the date of such taking. If (1) no Event of Default exists under this Agreement or the other Loan Documents; (2) no monetary Event of Default has occurred during the preceding twelve (12) months; (3) the proceeds or awards received by the Administrative Agent, together with any additional funds deposited with the Administrative Agent by the Borrowers, are sufficient, in the Administrative Agent’s reasonable discretion, either to restore the affected Borrowing Base Property substantially to its condition before the casualty or to remedy the condemnation; and (4) the Borrowing Base Property will continue to qualify as a Borrowing Base Property following the completion of any such repairs or restoration, then the Borrowers shall be entitled to use the insurance or condemnation proceeds to rebuild the affected Borrowing Base Property or to remedy the effect of the condemnation, as the case may be. In all other cases, subject to Section 6.18(j) of this Agreement, the Administrative Agent shall have the right (but not the obligation) to collect, retain and apply to the Indebtedness all insurance and condemnation proceeds (after deduction of all expense of collection and settlement, including reasonable attorney and adjusters’ fees and expenses). Any proceeds remaining after application to the Indebtedness shall be paid by the Administrative Agent to the Borrowers Borrower or the party then entitled thereto.
(b) If the Administrative Agent does not elect to or is not entitled to apply casualty proceeds or condemnation awards to the Indebtedness and if the Borrowers Loan Parties are not entitled to settle such claims, all as provided under Section 7.19(a), the Administrative Agent shall have the right (but not the obligation) to settle, collect and retain such proceeds, and after deduction of all reasonable expenses of collection and settlement, including reasonable attorney and adjusters’ fees and expenses, to release the same to the Borrower (or the applicable Borrower Borrowing Base Entity, at the instruction of the Borrower) periodically, provided that such the Borrower (or the applicable Borrowing Base Entity) shall:
(i) expeditiously repair and restore all damage to the portion of the Borrowing Base Property in question resulting from such casualty or condemnation, including completion of the construction if such fire or other casualty shall have occurred prior to completion, so that the Borrowing Base Property continue to qualify as a Borrowing Base Property following such construction; and
(ii) if the casualty proceeds or condemnation awards are, in the Administrative Agent’s reasonable judgment, insufficient to complete the repair and restoration of the buildings, structures and other improvements constituting the Borrowing Base Property as aforesaid, then the Borrowers Loan Parties shall promptly deposit with the Administrative Agent the amount of such deficiency. Any request by a Borrower Loan Party for a disbursement by the Administrative Agent of casualty proceeds or condemnation awards by the Borrowers Borrower pursuant to this Section 7.19 and the disbursement thereof shall be conditioned upon the BorrowersLoan Parties’ compliance with and satisfaction of the same conditions precedent as would be applicable in connection with construction loans made by institutional lenders for projects similar to the affected Borrowing Base Property, including approval of plans and specifications, submittal of evidence of completion, updated title insurance, lien waivers, and other customary safeguards.
Appears in 1 contract
Samples: Credit Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Insurance Proceeds and Condemnation Awards. (ai) In the event of any loss or damage to any portion of any Borrowing Base Property Asset due to fire or other casualty, or any taking of any portion of any Borrowing Base Property Asset by condemnation or under power of eminent domaindomain and provided that Borrower does not designate the Borrowing Base Asset suffering such loss as a non-Borrowing Base Asset in accordance with Section 5.02(e), the Administration Administrative Agent shall have the right, but not the obligation, after the occurrence and during the continuation of an Event of Default, to settle insurance claims and condemnation claims or awards, unless the loss or damage is less than $1,000,000.001,000,000. If (iA) the loss or damage is less than $1,000,000.00, 1,000,000 or (iiB) if the Administrative Agent elects not to settle such claim or award, then the applicable Borrower Loan Party shall have the right to settle such claim or award without the consent of Lenderthe Administrative Agent; provided that (A1) such Borrower Loan Party shall use the proceeds of any claim or award to rebuild or restore the applicable Borrowing Base Property Asset substantially to its condition prior to the casualty or condemnation to the extent permitted by Laws applicable law and (B2) such Borrower Loan Party shall provide the Administrative Agent with notice of the casualty or condemnationscondemnation. Failure In all other cases, the applicable Loan Party shall not settle such claim or award without the prior or concurrent written consent of the Administrative Agent. So long as such Borrowing Base Asset remains a Borrowing Base Asset, failure to use the insurance proceeds received directly from the insurance company to rebuild and restore the Borrowing Base Asset shall constitute an Event of Default. Notwithstanding the foregoing, provided that the conditions set forth in (A1) and (B2) above are satisfied and so long as each of the following (1w) through (4z) is satisfied, the Borrowers Loan Parties shall have the right to settle claims or awards for more than $1,000,000.001,000,000, provided that the Administrative Agent shall have the right to settle any claim or award that the Borrowers Loan Parties have not settled on or before one year after the date of such loss or prior to the date of such taking. If (1) no Event of Default exists under this Agreement or the other Loan Documents; (2) no monetary Event of Default has occurred during the preceding twelve (12) months; (3) the proceeds or awards received by the Administrative Agent, together with any additional funds deposited with the Administrative Agent by the Borrowers, are sufficient, in the Administrative Agent’s reasonable discretion, either to restore the affected Borrowing Base Property substantially to its condition before the casualty or to remedy the condemnation; and (4) the Borrowing Base Property will continue to qualify as a Borrowing Base Property following the completion of any such repairs or restoration, then the Borrowers shall be entitled to use the insurance or condemnation proceeds to rebuild the affected Borrowing Base Property or to remedy the effect of the condemnation, as the case may be. In all other cases, the The Administrative Agent shall have the right (but not the obligation) to collect, retain and apply to the Indebtedness Obligations all insurance and condemnation proceeds (after deduction of all expense of collection and settlement, including reasonable attorney and adjusters’ fees and expenses)) in the event that an Event of Default exists under this Agreement or the other Loan Documents or the Borrowing Base Asset no longer meets the Borrowing Base Conditions. Otherwise, all proceeds shall be delivered to the Borrower. Any proceeds remaining after application to the Indebtedness Obligations shall be paid by the Administrative Agent to the Borrowers Borrower or the party then entitled thereto.
(bii) If Provided that the Borrower has not designated the affected asset as a non-Borrowing Base Asset in accordance with Section 5.02(e), if the Administrative Agent does not elect to or is not entitled to apply casualty proceeds or condemnation awards to the Indebtedness Obligations and if the Borrowers Loan Parties are not entitled to settle such claims, all as provided under Section 7.19(athe foregoing subsection (i), the Administrative Agent shall have the right (but not the obligation) to settle, collect and retain such proceeds, and after deduction of all reasonable expenses of collection and settlement, including reasonable attorney and adjusters’ fees and expenses, to release the same to the applicable Borrower Loan Party periodically, provided that such Borrower Loan Party shall:
(iA) expeditiously repair and restore all damage to the portion of the Borrowing Base Property Asset in question resulting from such casualty or condemnation, including completion of the construction if such fire or other casualty shall have occurred prior to completion, so that the Borrowing Base Property Asset continue to qualify as a Borrowing Base Property Asset following such construction; and
(iiB) if the casualty proceeds or condemnation awards are, in the Administrative Agent’s reasonable judgment, insufficient to complete the repair and restoration of the buildings, structures and other improvements constituting the Borrowing Base Property Asset as aforesaid, then the Borrowers Loan Parties shall promptly deposit with the Administrative Agent the amount of such deficiency. Any request by a Borrower Loan Party for a disbursement by the Administrative Agent of casualty proceeds or condemnation awards by the Borrowers Borrower pursuant to this Section 7.19 5.01(x) and the disbursement thereof shall be conditioned upon the BorrowersLoan Parties’ compliance with and satisfaction of the same conditions precedent as would be applicable in connection with construction loans made by institutional lenders for projects similar to the affected Borrowing Base PropertyAsset, including approval of plans and specifications, submittal of evidence of completion, updated title insurance, lien waivers, and other customary safeguards.
Appears in 1 contract
Insurance Proceeds and Condemnation Awards. (a) In the event of any loss or damage to any portion of any Borrowing Base Property due to fire or other casualty, or any taking of any portion of any Borrowing Base Property by condemnation or under power of eminent domain, the Administration Agent shall have the right, but not the obligation, to settle insurance claims and condemnation claims or awards, unless the loss or damage is less than $1,000,000.00. If (i) Restoration of the loss or damage Project following a Casualty is reasonably expected to cost less than One Million Five Hundred Thousand and No/100 Dollars ($1,000,000.001,500,000.00) (the "Insurance Threshold Amount"), or (ii) the Condemnation Award is reasonably expected to be less than One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00) (the "Condemnation Threshold Amount"), provided no Default or Event of Default then exists, Borrower may, upon written notice to Administrative Agent elects not but without the need to obtain the prior written consent of Administrative Agent, settle and adjust any claim with respect to a Casualty and settle or agree to any Condemnation Award, and Borrower is hereby authorized to collect such claim Insurance Proceeds or awardCondemnation Awards with respect thereto.
(b) If Restoration of the 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 the applicable (i) Borrower shall have not, without the right reasonable prior written consent of Administrative Agent, settle or adjust any 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 11.3.
(c) 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 Lender; provided that Borrower, (Aii) such 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 11.3, and (iii) without Administrative Agent's prior consent, other than as required by any applicable insurance policy or Applicable Law Borrower shall use not take any action or fail to take any action which would cause the proceeds of any claim or award to rebuild or restore the applicable Borrowing Base Property substantially to its condition prior to the casualty or condemnation to the extent permitted by Laws and (B) such Borrower shall provide the Administrative Agent with notice amount of the casualty Insurance Proceeds or condemnationsCondemnation Awards to be affected or determined. Failure to use the insurance proceeds received directly from the insurance company to rebuild and restore shall constitute an Event of Default. Notwithstanding the foregoing, provided that the conditions set forth in (A) and (B) above are satisfied and so long as each of the following (1) through (4) is satisfied, the Borrowers shall have the right to settle claims or awards for more than $1,000,000.00, provided that the Administrative Agent shall have be under no obligation to question the right amount of any Insurance Proceeds or Condemnation Award and may accept the same in the amount in which the same shall be paid.
(d) If Borrower is a payee on any check representing Insurance Proceeds with respect to settle any claim or award that the Borrowers have not settled on or before one year after the date of a Significant Casualty, Borrower shall immediately endorse, such loss or prior check payable to the date order of Administrative Agent. Borrower hereby irrevocably appoints Administrative Agent as its attorney-in-fact, coupled with an interest, to endorse such takingcheck payable to the order of Administrative Agent. If 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.
(1e) no Event Notwithstanding the occurrence of Default exists under 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 the other Loan Documents; (2) no monetary Event of Default has occurred during the preceding twelve (12) months; (3) the proceeds or awards Condemnation Awards shall have been actually received and applied by the Administrative Agent, together with any additional funds deposited with 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 Casualty or Condemnation.
(f) With respect to any Condemnation, (i) the Lenders shall not be limited to the interest paid on the Condemnation Award by the Borrowers, are sufficient, in the Administrative Agent’s reasonable discretion, either to restore the affected Borrowing Base Property substantially to its condition before the casualty or to remedy the condemnation; and (4) the Borrowing Base Property will continue to qualify as a Borrowing Base Property following the completion of any such repairs or restoration, then the Borrowers condemning authority but shall be entitled to use the insurance or condemnation proceeds to rebuild the affected Borrowing Base Property or to remedy the effect receive out of the condemnationCondemnation Award interest at the rate or rates provided herein or in the Notes and this Agreement, as the case may be. In all other cases, the Administrative Agent shall have the right (but not the obligation) to collect, retain and apply to the Indebtedness all insurance and condemnation proceeds (after deduction of all expense of collection and settlement, including reasonable attorney and adjusters’ fees and expenses). Any proceeds remaining after application to the Indebtedness shall be paid by the Administrative Agent to the Borrowers or the party then entitled thereto.
(b) If the Administrative Agent does not elect to or is not entitled to apply casualty proceeds or condemnation awards to the Indebtedness and if the Borrowers are not entitled to settle such claims, all as provided under Section 7.19(a), the Administrative Agent shall have the right (but not the obligation) to settle, collect and retain such proceeds, and after deduction of all reasonable expenses of collection and settlement, including reasonable attorney and adjusters’ fees and expenses, to release the same to the applicable Borrower periodically, provided that such Borrower shall:
(i) expeditiously repair and restore all damage to the portion of the Borrowing Base Property in question resulting from such casualty or condemnation, including completion of the construction if such fire or other casualty shall have occurred prior to completion, so that the Borrowing Base Property continue to qualify as a Borrowing Base Property following such construction; and
(ii) if the casualty proceeds Project or condemnation awards areany portion thereof is subject to a Condemnation, in the provided that any Condemnation Awards are made available to Borrower for such purpose by Administrative Agent’s reasonable judgment, insufficient to complete Borrower shall promptly commence and diligently prosecute the repair and restoration Restoration of the buildings, structures Project and other improvements constituting the Borrowing Base Property as aforesaid, then the Borrowers shall promptly deposit otherwise comply with the Administrative Agent provisions of Section 11.3, (iii) if the amount of such deficiency. Any request Project is sold, through foreclosure or otherwise, prior to the receipt by a Borrower for a disbursement by the Administrative Agent of casualty proceeds or condemnation awards by the Borrowers pursuant to this Section 7.19 Condemnation Award, Administrative Agent and the disbursement 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 conditioned upon the Borrowers’ compliance with and satisfaction an Event of the same conditions precedent as would be applicable in connection with construction loans made by institutional lenders for projects similar to the affected Borrowing Base Property, including approval of plans and specifications, submittal of evidence of completion, updated title insurance, lien waivers, and other customary safeguardsDefault.
Appears in 1 contract
Insurance Proceeds and Condemnation Awards. (a) In the event of any loss or damage to any portion of any Borrowing Base Property due to fire or other casualty, or any taking of any portion of any Borrowing Base Property by condemnation or under power of eminent domain, the Administration Agent shall have the right, but not the obligation, to settle insurance claims and condemnation claims or awards, unless the loss or damage is less than $1,000,000.00. If (i) Restoration of the loss or damage Project following a Casualty is reasonably expected to cost less than $1,000,000.00750,000 (the "Insurance Threshold Amount"), or (ii) the Condemnation Award is reasonably expected to be less than $750,000 (the "Condemnation Threshold Amount"), provided no Default or Event of Default then exists, Borrower may, upon written notice to Administrative Agent elects not but without the need to obtain the prior written consent of Administrative Agent, settle and adjust any claim with respect to a Casualty and settle or agree to any Condemnation Award, and Borrower is hereby authorized to collect such claim Insurance Proceeds or awardCondemnation Awards with respect thereto. If Restoration of the 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 the applicable (i) Borrower shall have not, without the right reasonable prior written consent of Administrative Agent, settle or adjust any 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 Lender; provided that Borrower, (Aii) such 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 use not take any action or fail to take any action which would cause the proceeds 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 claim Insurance Proceeds or award 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 rebuild or restore the applicable Borrowing Base Property substantially to its condition prior a Significant Casualty, Borrower shall immediately endorse, such check payable to the casualty or condemnation 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 extent permitted order of Administrative Agent. All out-of-pocket expenses incurred by Laws and (B) such Borrower shall provide the Administrative Agent with notice in the settlement, adjustment and collection of the casualty or condemnations. Failure Insurance shall become part of the Obligations and shall be reimbursed by Borrower to use the insurance proceeds received directly from the insurance company to rebuild and restore shall constitute an Event of DefaultAdministrative Agent upon demand. Notwithstanding the foregoingoccurrence of any Casualty or Condemnation, (i) Borrower shall continue to pay the Obligations at the time and in the manner provided that for its payment in this Agreement and the conditions set forth in (A) 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 (Bii) above are satisfied and so long as each subject to all other provisions of the following (1) through (4) is satisfiedthis Agreement, the Borrowers shall have the right to settle claims or awards for more than $1,000,000.00, provided that the Administrative Agent shall have continue to make Loan Advances to Borrower notwithstanding the right to settle any claim or award that the Borrowers have not settled on or before one year after the date existence of such loss Casualty or prior to the date of such taking. If (1) no Event of Default exists under this Agreement or the other Loan Documents; (2) no monetary Event of Default has occurred during the preceding twelve (12) months; (3) the proceeds or awards received by the Administrative Agent, together with any additional funds deposited with the Administrative Agent by the Borrowers, are sufficient, in the Administrative Agent’s reasonable discretion, either to restore the affected Borrowing Base Property substantially to its condition before the casualty or to remedy the condemnation; and (4) the Borrowing Base Property will continue to qualify as a Borrowing Base Property following the completion of any such repairs or restoration, then the Borrowers shall be entitled to use the insurance or condemnation proceeds to rebuild the affected Borrowing Base Property or to remedy the effect of the condemnation, as the case may be. In all other cases, the Administrative Agent shall have the right (but not the obligation) to collect, retain and apply to the Indebtedness all insurance and condemnation proceeds (after deduction of all expense of collection and settlement, including reasonable attorney and adjusters’ fees and expenses). Any proceeds remaining after application to the Indebtedness shall be paid by the Administrative Agent to the Borrowers or the party then entitled theretoCondemnation.
(b) If the Administrative Agent does not elect to or is not entitled to apply casualty proceeds or condemnation awards to the Indebtedness and if the Borrowers are not entitled to settle such claims, all as provided under Section 7.19(a), the Administrative Agent shall have the right (but not the obligation) to settle, collect and retain such proceeds, and after deduction of all reasonable expenses of collection and settlement, including reasonable attorney and adjusters’ fees and expenses, to release the same to the applicable Borrower periodically, provided that such Borrower shall:
(i) expeditiously repair and restore all damage to the portion of the Borrowing Base Property in question resulting from such casualty or condemnation, including completion of the construction if such fire or other casualty shall have occurred prior to completion, so that the Borrowing Base Property continue to qualify as a Borrowing Base Property following such construction; and
(ii) if the casualty proceeds or condemnation awards are, in the Administrative Agent’s reasonable judgment, insufficient to complete the repair and restoration of the buildings, structures and other improvements constituting the Borrowing Base Property as aforesaid, then the Borrowers shall promptly deposit with the Administrative Agent the amount of such deficiency. Any request by a Borrower for a disbursement by the Administrative Agent of casualty proceeds or condemnation awards by the Borrowers pursuant to this Section 7.19 and the disbursement thereof shall be conditioned upon the Borrowers’ compliance with and satisfaction of the same conditions precedent as would be applicable in connection with construction loans made by institutional lenders for projects similar to the affected Borrowing Base Property, including approval of plans and specifications, submittal of evidence of completion, updated title insurance, lien waivers, and other customary safeguards.
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Insurance Proceeds and Condemnation Awards. Subject to the provisions of Section 13.1 hereof and this Article XIV, (ax) In the event of any loss if all or damage to any a portion of any Borrowing Base Property due 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 fire or other casualtysuch Casualty shall be adjusted by and paid directly to the Lessee, or any taking of any portion of any Borrowing Base Property if received by condemnation or under power of eminent domain, the Administration Agent shall have the right, but not the obligation, to settle insurance claims and condemnation claims or awards, unless the loss or damage is less than $1,000,000.00. If (i) the loss or damage is less than $1,000,000.00, or (ii) the Administrative Agent elects not or any Participant, shall be paid over to settle the Lessee for the reconstruction, refurbishment and repair of the affected Property, and (y) if the use, access, occupancy, easement rights or title to any Property or any part thereof is the subject of a Condemnation during the Lease Term for such claim or awardProperty, then any award or compensation relating thereto shall be adjusted by and paid to the applicable Borrower shall have the right to settle such claim or award without the consent of LenderLessee; provided that provided, however, that, in each case, if (A) such Borrower any Lease Default shall use the proceeds of any claim or award to rebuild or restore the applicable Borrowing Base Property substantially to its condition prior to the casualty or condemnation to the extent permitted by Laws have occurred and be continuing, (B) such Borrower Casualty or Condemnation is an Event of Loss or (C) the amount of such proceeds, award or compensation equals or exceeds $2,000,000, then such award, compensation or insurance proceeds shall provide be adjusted jointly by the Lessee and the Lessor and paid directly to the Administrative Agent with notice (as assignee of the casualty or condemnations. Failure to use the insurance proceeds received directly from the insurance company to rebuild and restore shall constitute an Event of Default. Notwithstanding the foregoingLessor) or, provided that the conditions set forth in (A) and (B) above are satisfied and so long as each of the following (1) through (4) is satisfied, the Borrowers shall have the right to settle claims or awards for more than $1,000,000.00, provided that the Administrative Agent shall have the right to settle any claim or award that the Borrowers have not settled on or before one year after the date of such loss or prior to the date of such taking. If (1) no Event of Default exists under this Agreement or the other Loan Documents; (2) no monetary Event of Default has occurred during the preceding twelve (12) months; (3) the proceeds or awards if received by the Lessee, shall be held in trust for the Participants and shall be paid over by the Lessee to the Administrative Agent, together with any additional funds deposited with to be distributed by the Administrative Agent by as follows: (x) in the Borrowerscase of a Lease Default, are sufficientsuch amounts shall be distributed in accordance with Section 7.6(b) of the 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 's reasonable discretion, either to restore the affected Borrowing Base Property substantially to its condition before the casualty or to remedy the condemnation; and (41) the Borrowing Base Property will continue to qualify as a Borrowing Base Property following the completion of any such repairs or restoration, then the Borrowers shall be entitled to use the insurance or condemnation proceeds to rebuild the affected Borrowing Base Property or to remedy the effect of the condemnation, as the case may be. In all other cases, the Administrative Agent shall have the right (but not the obligation) to collect, retain and apply paid to the Indebtedness all insurance and condemnation proceeds (after deduction of all expense of collection and settlement, including reasonable attorney and adjusters’ fees and expenses). Any proceeds remaining after application to the Indebtedness shall be paid by the Administrative Agent to the Borrowers or the party then entitled thereto.
(b) If the Administrative Agent does not elect to or is not entitled to apply casualty proceeds or condemnation awards to the Indebtedness and if the Borrowers are not entitled to settle such claims, all as provided under Section 7.19(a), the Administrative Agent shall have the right (but not the obligation) to settle, collect and retain such proceeds, and after deduction of all reasonable expenses of collection and settlement, including reasonable attorney and adjusters’ fees and expenses, to release the same to the applicable Borrower periodically, provided that such Borrower shall:
(i) expeditiously repair and restore all damage to the portion of the Borrowing Base Property in question resulting from such casualty or condemnation, including completion of the construction if such fire or other casualty shall have occurred prior to completion, so that the Borrowing Base Property continue to qualify as a Borrowing Base Property following such construction; and
(ii) if the casualty proceeds or condemnation awards are, in the Administrative Agent’s reasonable judgment, insufficient to complete Lessee for the repair and restoration of such Property in accordance with Section 14.2(d) or (2) be applied toward the buildingspayment of the applicable Property Cost of the affected Property and related amounts on the applicable Partial Termination Date in accordance with Section 15.1, structures and other improvements constituting (z) in the Borrowing Base Property as aforesaidcase of proceeds, then the Borrowers awards or compensation equal to or in excess of $2,000,000, such amounts shall promptly deposit with the Administrative Agent the amount of such deficiency. Any request by a Borrower for a disbursement be paid to and held by the Administrative Agent of casualty proceeds or condemnation awards by and, so long as no Lease Default shall have occurred and be continuing, paid to the Borrowers pursuant to this Section 7.19 and the disbursement thereof shall be conditioned Lessee upon the Borrowers’ compliance with and satisfaction completion of the same conditions precedent as would be applicable in connection with construction loans made by institutional lenders for projects similar to the affected Borrowing Base repair and restoration of such Property, including approval of plans and specifications, submittal of evidence of completion, updated title insurance, lien waivers, and other customary safeguards.
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