Common use of Insurance Proceeds and Fee Mortgagee Clause in Contracts

Insurance Proceeds and Fee Mortgagee. Notwithstanding anything herein (including, without limitation, Article XXXI hereof) or in any Fee Mortgage Documents to the contrary, in the event that any Fee Mortgagee is entitled to any insurance proceeds, or any portion thereof, under the terms of any Fee Mortgage or the related Fee Mortgage Documents, such proceeds shall be applied, held and/or disbursed in accordance with the terms of the Fee Mortgage or the related Fee Mortgage Documents. In the event that the Fee Mortgagee elects, or is required under the related Fee Mortgage Documents, to apply the insurance proceeds to the indebtedness secured by the Fee Mortgage, then Tenant shall not be obligated to repair or restore the Facility and Landlord shall either (i) refinance with a replacement Fee Mortgage (or otherwise fund) the amount of insurance proceeds applied to Fee Mortgage indebtedness within the earlier of (A) twelve (12) months after such application (in which event Tenant shall be obligated to restore the Facility in accordance with the terms and provisions of this Lease upon receipt of such proceeds), or (B) if, pursuant to Section 6.4(b)(i)(D) of the loan agreement with respect to the Existing Fee Mortgage (or any similar provision comprising Additional Fee Mortgagee Requirements as contained in any future Fee Mortgage Documents), Tenant shall be obligated to commence restoration in respect of such Casualty Event prior to the expiration of such twelve (12) month period, the later of (x) nine (9) months after the applicable Casualty Event, and (y) if Landlord provides Tenant with funds in an amount and within a time sufficient for Tenant to perform such repair or restoration of the Facility solely to the extent necessary to avoid breaching such Additional Fee Mortgagee Requirement, twelve (12) months after Fee Mortgagee’s application of such insurance proceeds to such indebtedness (and in the case of clause (B)(y), Section 14.2(b)(ii) shall not apply) (in which event described in clauses (B)(x) and (B)(y), Tenant shall be obligated to restore the Facility in accordance with the terms and provisions of this Lease upon receipt of such proceeds), or (ii) within the timeframes set forth in clause (i) above (as applicable), sell to Tenant the Leased Property (and Tenant shall be entitled to retain any remaining insurance proceeds) in exchange for a payment equal to the greater of (1) the difference between (a) the Fair Market Ownership Value of the Leased Property immediately prior to such casualty, and (b) the amount of insurance proceeds retained by the Fee Mortgagee or Landlord (subject to a credit in favor of Landlord to the extent of any sums provided to Tenant under clause (B)(y) above), and (2) the Fair Market Ownership Value (calculated without giving effect to clause (B) in the definition of “Fair Market Rental Value”) of the Leased Property after such casualty based on the average fair market value of similar real estate in the areas surrounding the Facility (subject to a credit in favor of Landlord to the extent of any sums provided to Tenant under clause (B)(y) above).

Insurance Proceeds and Fee Mortgagee. Notwithstanding anything herein (including, without limitation, Article XXXI hereof) or in any Fee Mortgage Documents to the contrary, in the event that any Fee Mortgagee is entitled to any insurance proceeds, or any portion thereof, under the terms of any Fee Mortgage or the related Fee Mortgage Documents, such proceeds shall be applied, held and/or disbursed in accordance with the terms of the Fee Mortgage or the related Fee Mortgage Documents. In the event that the Fee Mortgagee elects, or is required under the related Fee Mortgage Documents, to apply the insurance proceeds to the indebtedness secured by the Fee Mortgage, then Tenant shall not be obligated to repair or restore the affected Facility and Landlord shall either (i) refinance with a replacement Fee Mortgage (or otherwise fund) the amount of insurance proceeds applied to Fee Mortgage indebtedness within the earlier of (A) twelve (12) months after such application (in which event Tenant shall be obligated to restore the affected Facility in accordance with the terms and provisions of this Lease upon receipt of such proceeds), or (B) if, pursuant to Section 6.4(b)(i)(D) of the loan agreement with respect to the Existing Original Fee Mortgage (or any similar provision comprising Additional Fee Mortgagee Requirements as contained in any future Fee Mortgage Documents), Tenant shall be obligated to commence restoration in respect of such Casualty Event prior to the expiration of such twelve (12) month period, the later of (x) nine (9) months after the applicable Casualty Event, and (y) if Landlord provides Tenant with funds in an amount and within a time sufficient for Tenant to perform such repair or restoration of the affected Facility solely to the extent necessary to avoid breaching such Additional Fee Mortgagee Requirement, twelve (12) months after Fee Mortgagee’s application of such insurance proceeds to such indebtedness (and in the case of clause (B)(y), Section 14.2(b)(ii) shall not apply) (in which event described in clauses (B)(x) and (B)(y), Tenant shall be obligated to restore the Facility in accordance with the terms and provisions of this Lease upon receipt of such proceeds), or (ii) within the timeframes set forth in clause (i) above (as applicable), sell to Tenant the Leased Property with respect to the affected Facility (and Tenant shall be entitled to retain any remaining insurance proceeds) in exchange for a payment equal to the greater of (1) the difference between (a) the Fair Market Ownership Value of the Leased Property with respect to the affected Facility immediately prior to such casualty, and (b) the amount of insurance proceeds retained by the Fee Mortgagee or Landlord (subject to a credit in favor of Landlord to the extent of any sums provided to Tenant under clause (B)(y) above), and (2) the Fair Market Ownership Value (calculated without giving effect to clause (B) in the definition of “Fair Market Rental Value”) of the Leased Property with respect to the affected Facility after such casualty based on the average fair market value of similar real estate in the areas surrounding the affected Facility (subject to a credit in favor of Landlord to the extent of any sums provided to Tenant under clause (B)(y) above). In the event of a sale under clause (ii) of this Section 14.5, upon consummation of such sale, the Rent hereunder shall be reduced by the Rent Reduction Amount with respect to the affected Facility.