Other Dispositions. (a) Net Casualty Proceeds or Net Condemnation Proceeds, as the case may be, in excess of $5,000,000.00 (as such amount may be increased by increases in the CPI, as calculated in the manner set forth in Section 8.3(a)) (each, as applicable, the “Restoration Fund”) in respect of such Casualty or Condemnation, as the case may be, shall be paid to the Indenture Trustee for release to Lessee as restoration progresses, subject to and in accordance with Section 12.4(b). Lessor and Lessee hereby authorize and direct (i) any insurer to make payment under policies of casualty insurance required to be maintained by Lessee pursuant to Section 9.1(a) directly to the Proceeds Trustee instead of to Lessor and Lessee jointly, and (ii) any Governmental Agency to make payments of any Net Condemnation Proceeds directly to the Indenture Trustee instead of to Lessor and/or Lessee; and each of Lessee and Lessor hereby appoints the Proceeds Trustee as its attorney-in-fact to endorse any draft therefor for the purposes set forth in this Lease. In the event that a Casualty shall occur at such time as Lessee shall not have maintained property or casualty insurance to the extent required by Section 9.1(a) (i.e., Lessee is self insuring), Lessee shall, within thirty (30) days of the Casualty, pay to the Indenture Trustee the amount of the proceeds that would have been payable had such insurance been in effect and such amount shall constitute a part of the Restoration Fund for all purposes hereof. Notwithstanding the foregoing provisions of this Article 12, so long as a Lease Event of Default shall be continuing, any amount that would otherwise be payable to or for the account of Lessee pursuant to this Article 12 shall be paid to the Indenture Trustee (or to Lessor when the Debt Documents shall not be in effect) as security for the obligations of Lessee under this Lease and, at such time thereafter as the Lease Event of Default shall have been waived or no longer be continuing, unless Lessor shall be exercising its remedies under Section 17.1, such amount shall be paid promptly to Lessee or the Indenture Trustee in accordance with this Lease (subject to other terms hereof). (b) The Restoration Fund, if any, shall be disbursed by the Indenture Trustee by wire transfer of immediately available funds within five (5) Business Days of the last submission made pursuant to and in accordance with the following conditions (provided that there shall be no more than one disbursement during each month): (i) Lessee, prior to the disbursement of any sums by the Indenture Trustee from the Restoration Fund, shall have paid the first $5,000,000 of the costs of such restoration (such initial $5,000,000 payment representing the insurance proceeds, or self insurance obligation, as applicable, not delivered to the Indenture Trustee) as evidenced by paid receipts delivered to the Indenture Trustee from one or more of Lessee’s contractors hired in connection with such restoration accompanied by partial releases of liens in respect of such payment(s). (ii) At the time of any disbursement, no Lease Event of Default shall exist and, subject to Article 7, no mechanics’ or materialmen’s liens shall have been filed and remain undischarged, unbonded or not insured over. (iii) Disbursements (subject to the holdback in Section 12.4(b)(v) below) shall be made from time to time in an amount not exceeding the hard and soft cost of the work and costs incurred since the last disbursement upon receipt of (1) satisfactory evidence, including architects’ certificates when required pursuant to Section 8.3, of the stage of completion, of the estimated cost of completion and of performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (2) partial releases of liens in respect of the disbursement made pursuant to the immediately preceding request, and (3) other reasonable evidence of cost incurred (whether or not paid) so that the Indenture Trustee is able to verify that the amounts disbursed from time to time are represented by work that is completed in place or delivered to the site and free and clear of (subject to Article 7) mechanics’ and materialmen’s lien claims. (iv) Each request for disbursement shall be accompanied by a certificate of Lessee (1) agreeing to use amounts disbursed for the costs described in Section 12.4(b)(iii), (2) describing the work, materials or other costs or expenses for which payment is requested, (3) stating the cost incurred in connection therewith, and
Appears in 2 contracts
Samples: Lease Agreement (Vistra Energy Corp), Lease Agreement (Vistra Energy Corp)
Other Dispositions. (a) Net Casualty Proceeds or Net Condemnation Proceeds, as the case may be, in excess of $5,000,000.00 (as such amount may be increased by increases in the CPI, as calculated in the manner set forth in Section 8.3(a)) Threshold Amount (each, as applicable, the “Restoration Fund”) in respect of such Casualty or Condemnation, as the case may be, shall be paid to the Indenture Proceeds Trustee for release to Lessee as restoration progresses, subject to and in accordance with Section 12.4(b12.4(a). Lessor and Lessee hereby authorize and direct (i) any insurer insurer, to make payment in excess of the Threshold Amount under policies of casualty insurance required to be maintained by Lessee pursuant to Section 9.1(a) directly to the Proceeds Trustee instead of to Lessor and Lessee jointly, and (ii) any Governmental Agency to make payments of any Net Condemnation Proceeds directly to the Indenture Trustee instead of to Lessor and/or Lessee; and each of Lessee and Lessor hereby appoints the Proceeds Trustee as its attorney-in-fact to endorse any draft therefor for the purposes set forth in this Lease. In the event that a Casualty shall occur at such time as Lessee shall not have maintained property or casualty insurance to the extent required by Section 9.1(aof
(a) (i.e., Lessee is self insuringinsuring in whole, or in part), Lessee shall, within thirty shall be obligated to pay itself towards restoration the amount it self insures. Lessee shall be obligated to pay the Threshold Amount (30or any amount it self-insured) days of the Casualty, pay towards restoration costs prior to the Indenture Trustee the amount disbursement of the proceeds that would have been payable had such insurance been in effect and such amount shall constitute a part of any funds from the Restoration Fund for all purposes hereof. Notwithstanding the foregoing provisions of this Article 12, so long as a Lease Event of Default shall be continuing, any amount that would otherwise be payable to or for the account of Lessee pursuant to this Article 12 shall be paid to the Indenture Trustee (or to Lessor when the Debt Documents shall not be in effect) as security for the obligations of Lessee under this Lease and, at such time thereafter as the Lease Event of Default shall have been waived or no longer be continuing, unless Lessor shall be exercising its remedies under Section 17.1, such amount shall be paid promptly to Lessee or the Indenture Trustee in accordance with this Lease (subject to other terms hereof)Fund.
(ba) The Restoration Fund, if any, shall be disbursed by the Indenture Proceeds Trustee by wire transfer of immediately available funds within five (5) Business Days of the last submission made pursuant to and in accordance with the following conditions (provided that there shall be no more than one disbursement during each month):
(i) Lessee, prior to the disbursement of any sums by the Indenture Trustee from the Restoration Fund, shall have paid the first $5,000,000 of the costs of such restoration (such initial $5,000,000 payment representing the insurance proceeds, or self insurance obligation, as applicable, not delivered to the Indenture Trustee) as evidenced by paid receipts delivered to the Indenture Trustee from one or more of Lessee’s contractors hired in connection with such restoration accompanied by partial releases of liens in respect of such payment(s).
(ii) At the time of any disbursement, no Lease Event of Default shall exist and, subject to Article 7, no mechanics’ or materialmen’s liens shall have been filed and remain undischarged, unbonded or not insured over.
(iiiii) Disbursements (subject to the holdback in Section 12.4(b)(v12.4(a)(iv) below) shall be made from time to time in an amount not exceeding the hard and soft cost of the work and costs incurred since the last disbursement upon receipt of (1) satisfactory evidence, including architects’ certificates when required pursuant to Section 8.3, of the stage of completion, of the estimated cost of completion and of performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (2) partial releases of liens from Lessee’s general contractor in respect of the disbursement made pursuant to the immediately preceding request, and (3) other reasonable evidence of cost incurred (whether or not paid) so that the Indenture Proceeds Trustee is able to verify that the amounts disbursed from time to time are represented by work that is completed in place or delivered to the site and free and clear of (subject to Article 7) ), mechanics’ and materialmen’s lien claims.
(iviii) Each request for disbursement shall be accompanied by a certificate of Lessee (1) agreeing to use amounts disbursed for the costs described in Section 12.4(b)(iii12.4(a)(iv), (2) describing the work, materials or other costs or expenses for which payment is requested, (3) stating the cost incurred in connection therewith, and(4) stating that Lessee has paid costs and expenses for such work in an amount equal to the self insured and/or deductible amounts as permitted by Section 9.1(b) (and attaching thereto evidence thereof reasonable satisfactory to Lessor) and (5) stating that Lessee has not previously received payment for such work or expense and the certificate to be delivered by Lessee upon completion of the work shall, in addition, state that the work has been substantially completed and complies with the applicable requirements of this Lease.
(iv) The Proceeds Trustee shall retain ten percent (10%) of the amounts otherwise disbursable until the restoration is at least fifty percent (50%) complete, and thereafter five percent (5%) until the restoration is substantially complete.
(v) The Restoration Fund shall be kept by the Proceeds Trustee in a separate interest-bearing federally insured account or invested in Permitted Investments (as directed by, or on behalf of, Lessee).
(vi) Prior to commencement of restoration and at any time during restoration, if the estimated cost of restoration, as reasonably determined by the Proceeds Trustee, exceeds the then amount of the Restoration Fund, Lessee shall fund at its own expense the costs of such restoration until the remaining Restoration Fund is sufficient for the completion of the restoration. In the case of Casualty, any sum in the Restoration Fund which remains in the Restoration Fund upon the completion of restoration shall be paid to Lessee. In the case of Condemnation, any sum in the Restoration Fund which remains in the Restoration Fund upon the completion of restoration shall be applied as set forth in Section 12.2.
Appears in 1 contract
Samples: Lease Agreement (Cost Plus Inc/Ca/)
Other Dispositions. (a) Net Casualty Proceeds or Net Condemnation Proceeds, as the case may be, in excess of $5,000,000.00 the Threshold Amount (as such amount may be increased by increases in the CPI, as calculated in the manner set forth in Section 8.3(a)) (each, as applicable, the “Restoration Fund”"RESTORATION FUND") in respect of such Casualty or Condemnation, as the case may be, shall be paid to the Indenture Proceeds Trustee for release to Lessee as restoration progresses, subject to and in accordance with Section 12.4(b). Lessor and Lessee hereby authorize and direct (i) any insurer insurer, to make payment in excess of the Threshold Amount under policies of casualty insurance required to be maintained by Lessee pursuant to Section 9.1(a9.1 (a) directly to the Proceeds Trustee instead of to Lessor and Lessee jointly, and (ii) any Governmental Agency to make payments of any Net Condemnation Proceeds in excess of the Threshold Amount directly to the Indenture Proceeds Trustee instead of to Lessor and/or Lessee; and each of Lessee and Lessor hereby appoints the Proceeds Trustee as its attorney-in-fact to endorse any draft therefor for the purposes set forth in this LeaseLease after approval by Lessee of the Proceeds Trustee, if the Proceeds Trustee is other than the Lender. In the event that a Casualty shall occur at such time as Lessee shall not have maintained property or casualty insurance to the extent required by said Section 9.1(a9.1 (a) (i.e.I.E., Lessee is self insuringinsuring in whole, or in part), Lessee shall, within thirty (30) days of the Casualty, shall be obligated to pay to the Indenture Trustee itself towards restoration the amount of the proceeds that would have been payable had such insurance been in effect and such amount shall constitute a part of the Restoration Fund for all purposes hereofit self insures. Notwithstanding the foregoing provisions of this Article 12, so long as a Lease Event of Default Lessee shall be continuing, obligated to pay the Threshold Amount (or any amount that would otherwise be payable to or for the account of Lessee pursuant to this Article 12 shall be paid to the Indenture Trustee (or to Lessor when the Debt Documents shall not be in effectit self-insured) as security for the obligations of Lessee under this Lease and, at such time thereafter as the Lease Event of Default shall have been waived or no longer be continuing, unless Lessor shall be exercising its remedies under Section 17.1, such amount shall be paid promptly to Lessee or the Indenture Trustee in accordance with this Lease (subject to other terms hereof).
(b) The Restoration Fund, if any, shall be disbursed by the Indenture Trustee by wire transfer of immediately available funds within five (5) Business Days of the last submission made pursuant to and in accordance with the following conditions (provided that there shall be no more than one disbursement during each month):
(i) Lessee, towards restoration costs prior to the disbursement of any sums by the Indenture Trustee funds from the Restoration Fund, shall have paid the first $5,000,000 of the costs of such restoration (such initial $5,000,000 payment representing the insurance proceeds, or self insurance obligation, as applicable, not delivered to the Indenture Trustee) as evidenced by paid receipts delivered to the Indenture Trustee from one or more of Lessee’s contractors hired in connection with such restoration accompanied by partial releases of liens in respect of such payment(s).
(ii) At the time of any disbursement, no Lease Event of Default shall exist and, subject to Article 7, no mechanics’ or materialmen’s liens shall have been filed and remain undischarged, unbonded or not insured over.
(iii) Disbursements (subject to the holdback in Section 12.4(b)(v) below) shall be made from time to time in an amount not exceeding the hard and soft cost of the work and costs incurred since the last disbursement upon receipt of (1) satisfactory evidence, including architects’ certificates when required pursuant to Section 8.3, of the stage of completion, of the estimated cost of completion and of performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (2) partial releases of liens in respect of the disbursement made pursuant to the immediately preceding request, and (3) other reasonable evidence of cost incurred (whether or not paid) so that the Indenture Trustee is able to verify that the amounts disbursed from time to time are represented by work that is completed in place or delivered to the site and free and clear of (subject to Article 7) mechanics’ and materialmen’s lien claims.
(iv) Each request for disbursement shall be accompanied by a certificate of Lessee (1) agreeing to use amounts disbursed for the costs described in Section 12.4(b)(iii), (2) describing the work, materials or other costs or expenses for which payment is requested, (3) stating the cost incurred in connection therewith, and
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Other Dispositions. Notwithstanding the foregoing provisions of ------------------ this Section 12, so long as any Specified Lease Event of Default shall have occurred and be continuing, any amount (a) Net Casualty Proceeds or Net Condemnation Proceedsexcept for amounts referred to in Section 9.3 and payments under insurance policies described in Section 13, which shall be paid as set forth in Section 9.3 and Section 13, as the case may be) that otherwise would be payable to or for the account of, in excess of $5,000,000.00 (as such amount may or that otherwise would be increased by increases in the CPI, as calculated in the manner set forth in Section 8.3(a)) (each, as applicableretained by, the “Restoration Fund”) in respect of such Casualty or Condemnation, as the case may be, Lessee pursuant to this Section 12 shall be paid to the Indenture Owner Trustee for release to Lessee as restoration progresses, subject to and in accordance with Section 12.4(b). Lessor and Lessee hereby authorize and direct (i) any insurer to make payment under policies of casualty insurance required to be maintained by Lessee pursuant to Section 9.1(a) directly to the Proceeds Trustee instead of to Lessor and Lessee jointly, and (ii) any Governmental Agency to make payments of any Net Condemnation Proceeds directly or to the Indenture Trustee instead so long as the Facility Assets are subject to the Lien of to Lessor and/or Lessee; and each of Lessee and Lessor hereby appoints the Proceeds Trustee Indenture) as its attorney-in-fact to endorse any draft therefor security for the purposes set forth in obligations of the Lessee under this Lease. In Lease and, subject to the event that a Casualty shall occur Indenture, applied against the Lessee's payment obligations hereunder when and as they become due and payable and, at such time thereafter as Lessee shall not have maintained property or casualty insurance to the extent required by Section 9.1(a) (i.e., Lessee is self insuring), Lessee shall, within thirty (30) days of the Casualty, pay to the Indenture Trustee the amount of the proceeds that would have been payable had such insurance been in effect and such amount shall constitute a part of the Restoration Fund for all purposes hereof. Notwithstanding the foregoing provisions of this Article 12, so long as a no Specified Lease Event of Default shall be continuing, any such amount that would otherwise be payable shall, to the extent not theretofore applied as provided herein or for in the account of Lessee pursuant to this Article 12 shall Indenture, be paid promptly to the Indenture Trustee (Lessee or to Lessor when the Debt Documents shall not be in effect) as it may direct; provided that if any such -------- amount has been so held as security for the obligations of Lessee under this Lease and, at such time thereafter as the more than ninety (90) days after a Specified Lease Event of Default shall have been waived or no longer be continuing, unless occurred and during which period (i) - the Lessor shall be not have been limited by operation of law or otherwise from exercising its remedies hereunder or (ii) the Lessor shall not have commenced to -- exercise any remedy available to it under Section 17.116.1, then such amount shall be paid promptly to the Lessee or the Indenture Trustee in accordance with this Lease (subject to other terms hereof)as it may direct.
(b) The Restoration Fund, if any, shall be disbursed by the Indenture Trustee by wire transfer of immediately available funds within five (5) Business Days of the last submission made pursuant to and in accordance with the following conditions (provided that there shall be no more than one disbursement during each month):
(i) Lessee, prior to the disbursement of any sums by the Indenture Trustee from the Restoration Fund, shall have paid the first $5,000,000 of the costs of such restoration (such initial $5,000,000 payment representing the insurance proceeds, or self insurance obligation, as applicable, not delivered to the Indenture Trustee) as evidenced by paid receipts delivered to the Indenture Trustee from one or more of Lessee’s contractors hired in connection with such restoration accompanied by partial releases of liens in respect of such payment(s).
(ii) At the time of any disbursement, no Lease Event of Default shall exist and, subject to Article 7, no mechanics’ or materialmen’s liens shall have been filed and remain undischarged, unbonded or not insured over.
(iii) Disbursements (subject to the holdback in Section 12.4(b)(v) below) shall be made from time to time in an amount not exceeding the hard and soft cost of the work and costs incurred since the last disbursement upon receipt of (1) satisfactory evidence, including architects’ certificates when required pursuant to Section 8.3, of the stage of completion, of the estimated cost of completion and of performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (2) partial releases of liens in respect of the disbursement made pursuant to the immediately preceding request, and (3) other reasonable evidence of cost incurred (whether or not paid) so that the Indenture Trustee is able to verify that the amounts disbursed from time to time are represented by work that is completed in place or delivered to the site and free and clear of (subject to Article 7) mechanics’ and materialmen’s lien claims.
(iv) Each request for disbursement shall be accompanied by a certificate of Lessee (1) agreeing to use amounts disbursed for the costs described in Section 12.4(b)(iii), (2) describing the work, materials or other costs or expenses for which payment is requested, (3) stating the cost incurred in connection therewith, and
Appears in 1 contract
Other Dispositions. (a) If Net Casualty Proceeds or Net Condemnation Proceeds, as the case may be, in excess of Proceeds exceed $5,000,000.00 (as such amount may be increased by increases in the CPI, as calculated in the manner set forth in Section 8.3(a)) 500,000.00 (each, as applicable, the “"Restoration Fund”") in respect of such Casualty or Condemnation, as the case may be, then all Net Casualty Proceeds or Net Condemnation Proceeds shall be paid to the Indenture Proceeds Trustee for release to Lessee as restoration progresses, subject to and in accordance with Section 12.4(b12.04(b). Lessor and Lessee hereby authorize and direct (i) any insurer insurer, to make payment under policies of casualty insurance required to be maintained by Lessee pursuant to Section 9.1(a9.01(a) directly to the Proceeds Trustee instead of to Lessor and Lessee jointly, and (ii) any Governmental Agency to make payments of any Net Condemnation Proceeds directly to the Indenture Trustee instead of to Lessor and/or LesseeLessor; and each of Lessee and Lessor hereby appoints the Proceeds Trustee as its attorney-in-fact to endorse any draft therefor for the purposes set forth in this Lease. In the event that a Casualty shall occur at such time as Lessee shall not is self-insured (as permitted above) by means of deductibles, retained risks or no insurance where Net Casualty Proceeds would have maintained property or casualty exceeded $500,000.00 from a third-party insurer under a customary commercial all-risk full replacement-value insurance policy substantially similar to the extent required by Section 9.1(a) (i.e., Lessee is self insuring)that described in Schedule 9.01, Lessee shall, within thirty (30) days of the Casualty, pay to the Indenture Proceeds Trustee the amount of the proceeds that would have been payable had such insurance been in effect (determined in the manner provided in the fourth full paragraph of Section 12.01) and such amount shall constitute a part of the Restoration Fund for all purposes hereof. Notwithstanding the foregoing provisions of this Article 12XII, so long as a Lease Event of Default exists or a Lease Default shall have occurred and be continuing, any amount that would otherwise be payable to or for the account of Lessee pursuant to this Article 12 XII shall be paid to the Indenture Trustee Servicer (or if a Servicer has been and continues to Lessor when the Debt Documents shall not be in effectengaged to receive Rent) as security for the obligations of Lessee under this Lease and, and at such time thereafter as the Lease Event of Default shall have been waived or and the Lease Default shall no longer be continuing, unless Lessor shall be exercising its remedies under Section 17.117.01, such amount shall be paid promptly to Lessee or the Indenture Proceeds Trustee in accordance with this Lease (subject to other terms hereof)Lease.
(b) The Restoration Fund, if any, shall be disbursed by the Indenture Proceeds Trustee by wire transfer of immediately available funds within five (5) Business Days of the last submission made pursuant to and in accordance with the following conditions (provided that there shall be no more than one disbursement during each month):
(i) Lessee, prior to the disbursement of any sums by the Indenture Trustee from the Restoration Fund, shall have paid the first $5,000,000 of the costs of such restoration (such initial $5,000,000 payment representing the insurance proceeds, or self insurance obligation, as applicable, not delivered to the Indenture Trustee) as evidenced by paid receipts delivered to the Indenture Trustee from one or more of Lessee’s contractors hired in connection with such restoration accompanied by partial releases of liens in respect of such payment(s).
(ii) At the time of any disbursement, no Lease Event of Default exists and no Lease Default shall exist and, subject to Article 7, have occurred and be continuing and no mechanics’ ' or materialmen’s 's liens shall have been filed and remain undischarged, unbonded or not insured over.
(iiiii) Disbursements (subject to the holdback in Section 12.4(b)(v12.04(b)(iv) below) shall be made from time to time in an amount not exceeding the hard and soft cost costs of the work and costs incurred since the last disbursement upon receipt of (1) satisfactory evidence, including architects’ certificates when required pursuant to Section 8.3' or engineers' certificates, of the stage of completion, of the estimated cost of completion and of performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (2) partial releases of liens in respect of the disbursement made pursuant to the immediately preceding request, and (3) other reasonable evidence of cost costs incurred (whether or not paid) so that the Indenture Proceeds Trustee is able to verify that the amounts disbursed from time to time are represented by work that is completed in place or delivered to the site and free and clear of (subject to Article 7) or such claims have been bonded or insured over), mechanics’ ' and materialmen’s 's lien claims.
(iviii) Each request for disbursement shall be accompanied by a certificate of Lessee (1) agreeing to use amounts disbursed for the costs described in Section 12.4(b)(iii12.04(b)(ii), (2) describing the work, materials or other costs or expenses for which payment is requested, (3) stating the cost costs incurred in connection therewith, and(4) to the extent Lessee has not paid amounts equal to self-insured retentions to the Proceeds Trustee, stating that Lessee has paid costs and expenses for such work in an amount equal to the self insured and/or deductible amounts (and attaching thereto evidence thereof reasonable satisfactory to Lessor) and (5) stating that Lessee has not previously received payment for such work or expense and the certificate to be delivered by Lessee upon completion of the work shall, in addition, state that the work has been substantially completed and complies with the applicable requirements of this Lease.
(iv) The Proceeds Trustee shall retain ten percent (10%) of the amounts otherwise disbursable until the repair, restoration and replacement are at least fifty percent (50%) complete, and thereafter five percent (5%) until the repair, restoration and replacement are substantially complete.
(v) The Restoration Fund shall be kept by the Proceeds Trustee in a separate interest-bearing federally insured account or invested in Permitted Investments (as directed by, or on behalf of, Lessee).
(vi) At all times the undisbursed balance of the Restoration Fund held by the Proceeds Trustee shall be not less than the cost of completing the repair, restoration and replacement, free and clear of all liens (other than Permitted Liens, which term for purposes hereof shall exclude Liens of the type described in clause (d) of the definition of Permitted Liens other than Liens for amounts not yet due or that are bonded over or insured over), and in the case of any deficiency, the Lessee shall be required to deposit an amount equal to such deficiency into the Restoration Fund.
(vii) In addition, prior to commencement of repair, restoration and replacement and at any time during such repair, restoration and replacement, if the estimated cost of repair, restoration and replacement, as reasonably determined by the Proceeds Trustee, exceeds the then amount of the Restoration Fund, the amount of such excess shall be paid by Lessee to the Proceeds Trustee to be added to the Restoration Fund or Lessee shall fund at its own expense the costs of such repair, restoration and replacement until the remaining Restoration Fund is sufficient for the completion of the repair, restoration and replacement. in the case of Casualty, any sum in the Restoration Fund which remains in the Restoration Fund upon the completion of repair, restoration and replacement shall be paid to Lessee. In the case of Condemnation, any sum in the Restoration Fund which remains in the Restoration Fund upon the completion of repair, restoration and replacement shall be paid to Lessor. Lessor shall use such remaining sum to reduce the Indebtedness, if any. The Proceeds Trustee shall be retained at the cost, expense and risk of the Lessee.
Appears in 1 contract
Other Dispositions. (a) Net Casualty Proceeds or Net Condemnation Proceeds, as the case may be, in excess of $5,000,000.00 (as such amount may be increased by increases in the CPI, as calculated in the manner set forth in Section 8.3(a)) Threshold Amount (each, as applicable, the “Restoration Fund”) in respect of such Casualty or Condemnation, as the case may be, shall be paid to the Indenture Proceeds Trustee for release to Lessee as restoration progresses, subject to and in accordance with Section 12.4(b12.4(a). Lessor and Lessee hereby authorize and direct (i) any insurer insurer, to make payment in excess of the Threshold Amount under policies of casualty insurance required to be maintained by Lessee pursuant to Section 9.1(a) directly to the Proceeds Trustee instead of to Lessor and Lessee jointly, and (ii) any Governmental Agency to make payments of any Net Condemnation Proceeds directly to the Indenture Trustee instead of to Lessor and/or Lessee; and each of Lessee and Lessor hereby appoints the Proceeds Trustee as its attorney-in-fact to endorse any draft therefor for the purposes set forth in this Lease. In the event that a Casualty shall occur at such time as Lessee shall not have maintained property or casualty insurance to the extent required by Section 9.1(a
(a) (i.e., Lessee is self insuringinsuring in whole, or in part), Lessee shall, within thirty shall be obligated to pay itself towards restoration the amount it self insures. Lessee shall be obligated to pay the Threshold Amount (30or any amount it self-insured) days of the Casualty, pay towards restoration costs prior to the Indenture Trustee the amount disbursement of the proceeds that would have been payable had such insurance been in effect and such amount shall constitute a part of any funds from the Restoration Fund for all purposes hereof. Notwithstanding the foregoing provisions of this Article 12, so long as a Lease Event of Default shall be continuing, any amount that would otherwise be payable to or for the account of Lessee pursuant to this Article 12 shall be paid to the Indenture Trustee (or to Lessor when the Debt Documents shall not be in effect) as security for the obligations of Lessee under this Lease and, at such time thereafter as the Lease Event of Default shall have been waived or no longer be continuing, unless Lessor shall be exercising its remedies under Section 17.1, such amount shall be paid promptly to Lessee or the Indenture Trustee in accordance with this Lease (subject to other terms hereof)Fund.
(ba) The Restoration Fund, if any, shall be disbursed by the Indenture Proceeds Trustee by wire transfer of immediately available funds within five (5) Business Days of the last submission made pursuant to and in accordance with the following conditions (provided that there shall be no more than one disbursement during each month):
(i) Lessee, prior to the disbursement of any sums by the Indenture Trustee from the Restoration Fund, shall have paid the first $5,000,000 of the costs of such restoration (such initial $5,000,000 payment representing the insurance proceeds, or self insurance obligation, as applicable, not delivered to the Indenture Trustee) as evidenced by paid receipts delivered to the Indenture Trustee from one or more of Lessee’s contractors hired in connection with such restoration accompanied by partial releases of liens in respect of such payment(s).
(ii) At the time of any disbursement, no Lease Event of Default shall exist and, subject to Article 7, no mechanics’ or materialmen’s liens shall have been filed and remain undischarged, unbonded or not insured over.
(iiiii) Disbursements (subject to the holdback in Section 12.4(b)(v12.4(a)(iv) below) shall be made from time to time in an amount not exceeding the hard and soft cost of the work and costs incurred since the last disbursement upon receipt of (1) satisfactory evidence, including architects’ certificates when required pursuant to Section 8.3, of the stage of completion, of the estimated cost of completion and of performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (2) partial releases of liens from Lessee’s general contractor in respect of the disbursement made pursuant to the immediately preceding request, and (3) other reasonable evidence of cost incurred (whether or not paid) so that the Indenture Proceeds Trustee is able to verify that the amounts disbursed from time to time are represented by work that is completed in place or delivered to the site and free and clear of (subject to Article 7) ), mechanics’ and materialmen’s lien claims.
(iviii) Each request for disbursement shall be accompanied by a certificate of Lessee (1) agreeing to use amounts disbursed for the costs described in Section 12.4(b)(iii12.4(a)(ii), (2) describing the work, materials or other costs or expenses for which payment is requested, (3) stating the cost incurred in connection therewith, and(4) stating that Lessee has paid costs and expenses for such work in an amount equal to the self insured and/or deductible amounts as permitted by Section 9.1(b) (and attaching thereto evidence thereof reasonable satisfactory to Lessor) and (5) stating that Lessee has not previously received payment for such work or expense and the certificate to be delivered by Lessee upon completion of the work shall, in addition, state that the work has been substantially completed and complies with the applicable requirements of this Lease.
(iv) The Proceeds Trustee shall retain ten percent (10%) of the amounts otherwise disbursable until the restoration is at least fifty percent (50%) complete, and thereafter five percent (5%) until the restoration is substantially complete.
(v) The Restoration Fund shall be kept by the Proceeds Trustee in a separate interest-bearing federally insured account or invested in Permitted Investments (as directed by, or on behalf of, Lessee).
(vi) Prior to commencement of restoration and at any time during restoration, if the estimated cost of restoration, as reasonably determined by the Proceeds Trustee, exceeds the then amount of the Restoration Fund, Lessee shall fund at its own expense the costs of such restoration until the remaining Restoration Fund is sufficient for the completion of the restoration. In the case of Casualty, any sum in the Restoration Fund which remains in the Restoration Fund upon the completion of restoration shall be paid to Lessee. In the case of Condemnation, any sum in the Restoration Fund which remains in the Restoration Fund upon the completion of restoration shall be applied as set forth in Section 12.2.
Appears in 1 contract
Other Dispositions. (a) Net Casualty Proceeds or Net Condemnation Proceeds, as the case may be, to the extent applicable to the value of Improvements damaged in excess of One Hundred Thousand Dollars ($5,000,000.00 100,000) (as such said amount may to be deemed automatically increased by each year in proportion to increases in the CPI, as calculated in consumer price index for all urban consumers for the manner set forth in Section 8.3(a)Los Angeles County area for the prior Lease Year) with respect to the Property (each, as applicable, the “Restoration Fund”) in respect of such Casualty or Condemnation, as the case may be, shall be paid to the Indenture Proceeds Trustee for release to Lessee Tenant pursuant to the provisions hereof as restoration progresses, subject to and in accordance with Section 12.4(b). Lessor Landlord and Lessee Tenant hereby authorize and direct (i) any insurer to make payment under policies of casualty insurance required to be maintained by Lessee Tenant pursuant to Section 9.1(a11(a) directly to the Proceeds Trustee instead of to Lessor Landlord and Lessee Tenant jointly, and (ii) any Governmental Agency to make payments of any Net Condemnation Proceeds directly to the Indenture Trustee instead of to Lessor and/or Lessee; and Tenant and Landlord each of Lessee and Lessor hereby appoints the Proceeds Trustee as its attorney-in-fact to endorse any draft therefor for the purposes set forth in this Lease. In the event that a Casualty shall occur at such time as Lessee Tenant, in contravention of the terms of this Lease, shall not have maintained property or casualty insurance to the extent required by said Section 9.1(a) (i.e., Lessee is self insuring11(a), Lessee Tenant shall, within thirty (30) days of the Casualty, pay to the Indenture Proceeds Trustee the amount of the proceeds that would have been payable had such insurance been in effect and such amount shall constitute a part of the Restoration Fund for all purposes hereof. Notwithstanding the foregoing provisions of this Article 12Section, so long as a Lease Event of Default shall be continuing, any amount that would otherwise be payable to or for the account of Lessee Tenant pursuant to this Article 12 Section shall be paid to the Indenture Trustee (or to Lessor when the Debt Documents shall not be in effect) Landlord as security for the obligations of Lessee Tenant under this Lease and, at such time thereafter as the Lease Event of Default shall have been waived or no longer be continuing, unless Lessor Landlord shall be exercising its remedies under Section 17.1, such amount shall be paid promptly to Lessee Tenant or the Indenture Proceeds Trustee in accordance with this Lease (subject to other terms hereof).
(b) The Restoration Fund, if any, shall be disbursed by the Indenture Proceeds Trustee by wire transfer of immediately available funds within five (5) Business Days of the last submission made pursuant to and in accordance with the following conditions (provided that there shall be no more than one disbursement during each month):conditions:
(i) Lessee, prior to the disbursement of any sums by the Indenture Trustee from the Restoration Fund, shall have paid the first $5,000,000 of the costs of such restoration (such initial $5,000,000 payment representing the insurance proceeds, or self insurance obligation, as applicable, not delivered to the Indenture Trustee) as evidenced by paid receipts delivered to the Indenture Trustee from one or more of Lessee’s contractors hired in connection with such restoration accompanied by partial releases of liens in respect of such payment(s).
(ii) At the time of any disbursement, no Lease Event of Default shall exist and, subject to Article 7, and no mechanics’ or materialmen’s liens shall have been filed and remain undischarged, unbonded or not insured over.
(iiiii) Disbursements (subject to the holdback in Section 12.4(b)(v) below) shall be made from time to time in an amount not exceeding the hard and soft cost of the work and costs incurred since the last disbursement upon receipt of (1) reasonably satisfactory evidence, including architects’ certificates when required pursuant to Section 8.3certificates, of the stage of completion, of the estimated cost of completion and of performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (2) partial releases of liens in respect of the disbursement made pursuant to the immediately preceding requestLiens from all Persons performing such work, and (3) other reasonable evidence of cost incurred (whether or not paid) and payment so that the Indenture Proceeds Trustee is able to verify that the amounts disbursed from time to time are represented by work that is completed in place or delivered to the site Property and free and clear of (subject to Article 7or such claims have been bonded or insured over) mechanics’ and materialmen’s lien claims.
(iviii) Each request for disbursement shall be accompanied by a certificate of Lessee (1) agreeing to use amounts disbursed for the costs described in Section 12.4(b)(iii), (2) Tenant describing the work, materials or other costs or expenses for which payment is requested, (3) stating the cost incurred in connection therewiththerewith and stating that Tenant has not previously received payment for such work or expense and the certificate to be delivered by Tenant upon completion of the work shall, andin addition, state that the work has been substantially completed and complies with the applicable requirements of this Lease.
(iv) The Restoration Fund shall be kept in a separate interest- bearing federally insured account by the Proceeds Trustee.
(v) At all times the undisbursed balance of the Restoration Fund held by Proceeds Trustee plus any funds already contributed thereto by Tenant shall be not less than the cost of completing the restoration, free and clear of all Liens.
(vi) In addition, prior to commencement of restoration and at any time during restoration, if the estimated cost of restoration, as reasonably determined by the Proceeds Trustee, exceeds the then amount of the Restoration Fund, the amount of such excess shall be paid upon demand by Tenant to the Proceeds Trustee to be added to the Restoration Fund. Any sum in the Restoration Fund which remains in the Restoration Fund upon the completion of restoration shall be paid to Tenant.
Appears in 1 contract
Other Dispositions. (a) If Net Casualty Proceeds or Net Condemnation Proceeds, as the case may be, in excess of Proceeds exceed $5,000,000.00 (as such amount may be increased by increases in the CPI, as calculated in the manner set forth in Section 8.3(a)) 500,000.00 (each, as applicable, the “"Restoration Fund”") in respect of such Casualty or Condemnation, as the case may be, then all Net Casualty Proceeds or Net Condemnation Proceeds shall be paid to the Indenture Proceeds Trustee for release to Lessee as restoration progresses, subject to and in accordance with Section 12.4(b12.04(b). Lessor and Lessee hereby authorize and direct (i) any insurer insurer, to make payment under policies of casualty insurance required to be maintained by Lessee pursuant to Section 9.1(a9.01(a) directly to the Proceeds Trustee instead of to Lessor and Lessee jointly, and (ii) any Governmental Agency to make payments of any Net Condemnation Proceeds directly to the Indenture Trustee instead of to Lessor and/or LesseeLessor; and each of Lessee and Lessor hereby appoints the Proceeds Trustee as its attorney-in-fact to endorse any draft therefor for the purposes set forth in this Lease. In the event that a Casualty shall occur at such time as Lessee shall not is self-insured (as permitted above) by means of deductibles, retained risks or no insurance where Net Casualty Proceeds would have maintained property or casualty exceeded $500,000.00 from a third-party insurer under a customary commercial all-risk full replacement-value insurance policy substantially similar to the extent required by Section 9.1(a) (i.e., Lessee is self insuring)that described in Schedule 9.01, Lessee shall, within thirty (30) days of the Casualty, pay to the Indenture Proceeds Trustee the amount of the proceeds that would have been payable had such insurance been in effect (determined in the manner provided in the fourth full paragraph of Section 12.01) and such amount shall constitute a part of the Restoration Fund for all purposes hereof. hereof Notwithstanding the foregoing provisions of this Article 12XII, so long as a Lease Event of Default exists or a Lease Default shall have occurred and be continuing, any amount that would otherwise be payable to or for the account of Lessee pursuant to this Article 12 XII shall be paid to the Indenture Trustee Servicer (or if a Servicer has been and continues to Lessor when the Debt Documents shall not be in effectengaged to receive Rent) as security for the obligations of Lessee under this Lease and, and at such time thereafter as the Lease Event of Default shall have been waived or and the Lease Default shall no longer be continuing, unless Lessor shall be exercising its remedies under Section 17.117.01, such amount shall be paid promptly to Lessee or the Indenture Proceeds Trustee in accordance with this Lease (subject to other terms hereof)Lease.
(b) The Restoration Fund, if any, shall be disbursed by the Indenture Proceeds Trustee by wire transfer of immediately available funds within five (5) Business Days of the last submission made pursuant to and in accordance with the following conditions (provided that there shall be no more than one disbursement during each month):
(i) Lessee, prior to the disbursement of any sums by the Indenture Trustee from the Restoration Fund, shall have paid the first $5,000,000 of the costs of such restoration (such initial $5,000,000 payment representing the insurance proceeds, or self insurance obligation, as applicable, not delivered to the Indenture Trustee) as evidenced by paid receipts delivered to the Indenture Trustee from one or more of Lessee’s contractors hired in connection with such restoration accompanied by partial releases of liens in respect of such payment(s).
(ii) At the time of any disbursement, no Lease Event of Default exists and no Lease Default shall exist and, subject to Article 7, have occurred and be continuing and no mechanics’ ' or materialmen’s 's liens shall have been filed and remain undischarged, unbonded or not insured over.
(iiiii) Disbursements (subject to the holdback in Section 12.4(b)(v12.04(b)(iv) below) shall be made from time to time in an amount not exceeding the hard and soft cost costs of the work and costs incurred since the last disbursement upon receipt of (1) satisfactory evidence, including architects’ certificates when required pursuant to Section 8.3' or engineers' certificates, of the stage of completion, of the estimated cost of completion and of performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (2) partial releases of liens in respect of the disbursement made pursuant to the immediately preceding request, and (3) other reasonable evidence of cost costs incurred (whether or not paid) so that the Indenture Proceeds Trustee is able to verify that the amounts disbursed from time to time are represented by work that is completed in place or delivered to the site and free and clear of (subject to Article 7) or such claims have been bonded or insured over), mechanics’ ' and materialmen’s 's lien claims.
(iviii) Each request for disbursement shall be accompanied by a certificate of Lessee (1) agreeing to use amounts disbursed for the costs described in Section 12.4(b)(iii12.04(b)(ii), (2) describing the work, materials or other costs or expenses for which payment is requested, (3) stating the cost costs incurred in connection therewith, and(4) to the extent Lessee has not paid amounts equal to self-insured retentions to the Proceeds Trustee, stating that Lessee has paid costs and expenses for such work in an amount equal to the self insured and/or deductible amounts (and attaching thereto evidence thereof reasonable satisfactory to Lessor) and (5) stating that Lessee has not previously received payment for such work or expense and the certificate to be delivered by Lessee upon completion of the work shall, in addition, state that the work has been substantially completed and complies with the applicable requirements of this Lease.
(iv) The Proceeds Trustee shall retain ten percent (10%) of the amounts otherwise disbursable until the repair, restoration and replacement are at least fifty percent (50%) complete, and thereafter five percent (5%) until the repair, restoration and replacement are substantially complete.
(v) The Restoration Fund shall be kept by the Proceeds Trustee in a separate interest-bearing federally insured account or invested in Permitted Investments (as directed by, or on behalf of, Lessee).
(vi) At all times the undisbursed balance of the Restoration Fund held by the Proceeds Trustee shall be not less than the cost of completing the repair, restoration and replacement, free and clear of all liens (other than Permitted Liens, which term for purposes hereof shall exclude Liens of the type described in clause (d) of the definition of Permitted Liens other than Liens for amounts not yet due or that are bonded over or insured over), and in the case of any deficiency, the Lessee shall be required to deposit an amount equal to such deficiency into the Restoration Fund.
(vii) In addition, prior to commencement of repair, restoration and replacement and at any time during such repair, restoration and replacement, if the estimated cost of repair, restoration and replacement, as reasonably determined by the Proceeds Trustee, exceeds the then amount of the Restoration Fund, the amount of such excess shall be paid by Lessee to the Proceeds Trustee to be added to the Restoration Fund or Lessee shall fund at its own expense the costs of such repair, restoration and replacement until the remaining Restoration Fund is sufficient for the completion of the repair, restoration and replacement. In the case of Casualty, any sum in the Restoration Fund which remains in the Restoration Fund upon the completion of repair, restoration and replacement shall be paid to Lessee. In the case of Condemnation, any sum in the Restoration Fund which remains in the Restoration Fund upon the completion of repair, restoration and replacement shall be paid to Lessor. Lessor shall use such remaining sum to reduce the Indebtedness, if any. The Proceeds Trustee shall be retained at the cost, expense and risk of the Lessee.
Appears in 1 contract
Other Dispositions. (a) Net Casualty Proceeds or Net Condemnation Proceeds, as the case may be, in excess of $5,000,000.00 (as such amount may be increased by increases in the CPI, as calculated in the manner set forth in Section 8.3(a)) Threshold Amount (each, as applicable, the “Restoration Fund”) in respect of such Casualty or Condemnation, as the case may be, shall be paid to the Indenture Proceeds Trustee for release to Lessee as restoration progresses, subject to and in accordance with Section 12.4(b12.4(a). Lessor and Lessee hereby authorize and direct (i) any insurer insurer, to make payment in excess of the Threshold Amount under policies of casualty insurance required to be maintained by Lessee pursuant to Section 9.1(a) directly to the Proceeds Trustee instead of to Lessor and Lessee jointly, and (ii) any Governmental Agency to make payments of any Net Condemnation Proceeds in excess of the Threshold Amount directly to the Indenture Proceeds Trustee instead of to Lessor and/or Lessee; and each of Lessee and Lessor hereby appoints the Proceeds Trustee as its attorney-in-fact to endorse any draft therefor for the purposes set forth in this LeaseLease after approval by Lessee of the Proceeds Trustee, if the Proceeds Trustee is other than the Lender. In the event that a Casualty shall occur at such time as Lessee shall not have maintained property or casualty insurance to the extent required by said Section 9.1(a) (i.e., Lessee is self insuringinsuring in whole, or in part), Lessee shall, within thirty shall be obligated to pay itself towards restoration the amount it self insures. Lessee shall be obligated to pay the Threshold Amount (30or any amount it self-insured) days of the Casualty, pay towards restoration costs prior to the Indenture Trustee the amount disbursement of the proceeds that would have been payable had such insurance been in effect and such amount shall constitute a part of any funds from the Restoration Fund for all purposes hereof. Notwithstanding the foregoing provisions of this Article 12, so long as a Lease Event of Default shall be continuing, any amount that would otherwise be payable to or for the account of Lessee pursuant to this Article 12 shall be paid to the Indenture Trustee (or to Lessor when the Debt Documents shall not be in effect) as security for the obligations of Lessee under this Lease and, at such time thereafter as the Lease Event of Default shall have been waived or no longer be continuing, unless Lessor shall be exercising its remedies under Section 17.1, such amount shall be paid promptly to Lessee or the Indenture Trustee in accordance with this Lease (subject to other terms hereof)Fund.
(ba) The Restoration Fund, if any, shall be disbursed by the Indenture Proceeds Trustee by wire transfer of immediately available funds within five (5) Business Days of the last submission made pursuant to and in accordance with the following conditions (provided that there shall be no more than one disbursement during each month):
(i) Lessee, prior to the disbursement of any sums by the Indenture Trustee from the Restoration Fund, shall have paid the first $5,000,000 of the costs of such restoration (such initial $5,000,000 payment representing the insurance proceeds, or self insurance obligation, as applicable, not delivered to the Indenture Trustee) as evidenced by paid receipts delivered to the Indenture Trustee from one or more of Lessee’s contractors hired in connection with such restoration accompanied by partial releases of liens in respect of such payment(s).
(ii) At the time of any disbursement, no Lease Event of Default shall exist and, subject to Article 7, no mechanics’ or materialmen’s liens shall have been filed and remain undischarged, unbonded or not insured over.
(iiiii) Disbursements (subject to the holdback in Section 12.4(b)(v12.4(a)(iv) below) shall be made from time to time in an amount not exceeding the hard and soft cost of the work and costs incurred since the last disbursement upon receipt of (1) satisfactory evidence, including architects’ certificates when required pursuant to Section 8.3, of the stage of completion, of the estimated cost of completion and of performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (2) partial releases of liens from Lessee’s general contractor in respect of the disbursement made pursuant to the immediately preceding request, and (3) other reasonable evidence of cost incurred (whether or not paid) so that the Indenture Proceeds Trustee is able to verify that the amounts disbursed from time to time are represented by work that is completed in place or delivered to the site and free and clear of (subject to Article 7) ), mechanics’ and materialmen’s lien claims.
(iviii) Each request for disbursement shall be accompanied by a certificate of Lessee (1) agreeing to use amounts disbursed for the costs described in Section 12.4(b)(iii12.4(a)(iv), (2) describing the work, materials or other costs or expenses for which payment is requested, (3) stating the cost incurred in connection therewith, and(4) stating that Lessee has paid costs and expenses for such work in an amount equal to the self insured and/or deductible amounts as permitted by Section 9.1(b) (and attaching thereto evidence thereof reasonable satisfactory to Lessor) and (5) stating that Lessee has not previously received payment for such work or expense and the certificate to be delivered by Lessee upon completion of the work shall, in addition, state that the work has been substantially completed and complies with the applicable requirements of this Lease.
(iv) The Proceeds Trustee shall retain ten percent (10%) of the amounts otherwise disbursable until the restoration is at least fifty percent (50%) complete, and thereafter five percent (5%) until the restoration is substantially complete.
(v) The Restoration Fund shall be kept by the Proceeds Trustee in a separate interest-bearing federally insured account or invested in Permitted Investments (as directed by, or on behalf of, Lessee).
(vi) Prior to commencement of restoration and at any time during restoration, if the estimated cost of restoration, as reasonably determined by the Proceeds Trustee, exceeds the then amount of the Restoration Fund, Lessee shall fund at its own expense the costs of such restoration until the remaining Restoration Fund is sufficient for the completion of the restoration. In the case of Casualty, any sum in the Restoration Fund which remains in the Restoration Fund upon the completion of restoration shall be paid to Lessee. In the case of Condemnation, any sum in the Restoration Fund which remains in the Restoration Fund upon the completion of restoration shall be applied as set forth in Section 12.2.
Appears in 1 contract
Samples: Lease Agreement (Cost Plus Inc/Ca/)
Other Dispositions. (a) Net Casualty Proceeds or Net Condemnation Proceeds, as the case may be, in excess of $5,000,000.00 (as such amount may be increased by increases in the CPI, as calculated in the manner set forth in Section 8.3(a)) (each, as applicable, the “"Restoration Fund”") in respect of such Casualty or Condemnation, as the case may be, shall be paid to the Indenture Trustee for release to Lessee as restoration progresses, subject to and in accordance with Section 12.4(b). Lessor and Lessee hereby authorize and direct (i) any insurer to make payment under policies of casualty insurance required to be maintained by Lessee pursuant to Section 9.1(a) directly to the Proceeds Trustee instead of to Lessor and Lessee jointly, and (ii) any Governmental Agency to make payments of any Net Condemnation Proceeds directly to the Indenture Trustee instead of to Lessor and/or Lessee; and each of Lessee and Lessor hereby appoints the Proceeds Trustee as its attorney-in-fact to endorse any draft therefor for the purposes set forth in this Lease. In the event that a Casualty shall occur at such time as Lessee shall not have maintained property or casualty insurance to the extent required by Section 9.1(a) (i.e., Lessee is self insuring), Lessee shall, within thirty (30) days of the Casualty, pay to the Indenture Trustee the amount of the proceeds that would have been payable had such insurance been in effect and such amount shall constitute a part of the Restoration Fund for all purposes hereof. Notwithstanding the foregoing provisions of this Article 12, so long as a Lease Event of Default shall be continuing, any amount that would otherwise be payable to or for the account of Lessee pursuant to this Article 12 shall be paid to the Indenture Trustee (or to Lessor when the Debt Documents shall not be in effect) as security for the obligations of Lessee under this Lease and, at such time thereafter as the Lease Event of Default shall have been waived or no longer be continuing, unless Lessor shall be exercising its remedies under Section 17.1, such amount shall be paid promptly to Lessee or the Indenture Trustee in accordance with this Lease (subject to other terms hereof).
(b) The Restoration Fund, if any, shall be disbursed by the Indenture Trustee by wire transfer of immediately available funds within five (5) Business Days of the last submission made pursuant to and in accordance with the following conditions (provided that there shall be no more than one disbursement during each month):
(i) Lessee, prior to the disbursement of any sums by the Indenture Trustee from the Restoration Fund, shall have paid the first $5,000,000 of the costs of such restoration (such initial $5,000,000 payment representing the insurance proceeds, or self insurance obligation, as applicable, not delivered to the Indenture Trustee) as evidenced by paid receipts delivered to the Indenture Trustee from one or more of Lessee’s 's contractors hired in connection with such restoration accompanied by partial releases of liens in respect of such payment(s).
(ii) At the time of any disbursement, no Lease Event of Default shall exist and, subject to Article 7, no mechanics’ ' or materialmen’s 's liens shall have been filed and remain undischarged, unbonded or not insured over.
(iii) Disbursements (subject to the holdback in Section 12.4(b)(v) below) shall be made from time to time in an amount not exceeding the hard and soft cost of the work and costs incurred since the last disbursement upon receipt of (1) satisfactory evidence, including architects’ ' certificates when required pursuant to Section 8.3, of the stage of completion, of the estimated cost of completion and of performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (2) partial releases of liens in respect of the disbursement made pursuant to the immediately preceding request, and (3) other reasonable evidence of cost incurred (whether or not paid) so that the Indenture Trustee is able to verify that the amounts disbursed from time to time are represented by work that is completed in place or delivered to the site and free and clear of (subject to Article 7) mechanics’ ' and materialmen’s 's lien claims.
(iv) Each request for disbursement shall be accompanied by a certificate of Lessee (1) agreeing to use amounts disbursed for the costs described in Section 12.4(b)(iii), (2) describing the work, materials or other costs or expenses for which payment is requested, (3) stating the cost incurred in connection therewith, andand (4) stating that Lessee has not previously received payment for such work or expense and the certificate to be delivered by Lessee upon completion of the work shall, in addition, state that the work has been substantially completed and complies with the applicable requirements of this Lease.
(v) The Indenture Trustee shall retain ten percent (10%) of the amounts otherwise disbursable until the restoration is at least fifty percent (50%) complete, and thereafter five percent (5%) until the restoration is substantially complete.
(vi) The Restoration Fund shall be kept by the Indenture Trustee in a separate interest-bearing federally insured account or invested in Permitted Investments (as directed by, or on behalf of, Lessee).
(vii) At all times the undisbursed balance of the Restoration Fund held by the Indenture Trustee shall be not less than the cost of completing the restoration, free and clear of all liens as certified to by either Lessee's architect or engineer in accordance with Section 8.3(b) (other than Permitted Liens, which term for purposes hereof shall exclude Liens of the type described in clause (d) of the definition of Permitted Liens other than Liens for amounts not yet due or that are bonded over or insured over).
(viii) In addition, prior to commencement of restoration and at any time during restoration, if the estimated cost of restoration, as reasonably determined by the Indenture Trustee, exceeds the then amount of the Restoration Fund, the amount of such excess shall be paid by Lessee to the Indenture Trustee to be added to the Restoration Fund or Lessee shall fund at its own expense the costs of such restoration until the remaining Restoration Fund is sufficient for the completion of the restoration. In the case of Casualty, any sum in the Restoration Fund which remains in the Restoration Fund upon the completion of restoration shall be paid to Lessee so long as no Lease Event of Default then exists. In the case of Condemnation, any sum in the Restoration Fund which remains in the Restoration Fund upon the completion of restoration shall be applied as set forth in Section 12.2.
Appears in 1 contract
Samples: Lease Agreement (Txu Corp /Tx/)
Other Dispositions. (a) Net Casualty Proceeds or Net Condemnation Proceeds, as the case may be, in excess of $5,000,000.00 (as such amount may be increased by increases in the CPI, as calculated in the manner set forth in Section 8.3(a)) Threshold Amount (each, as applicable, the “Restoration Fund”) in respect of such Casualty or Condemnation, as the case may be, shall be paid to the Indenture Proceeds Trustee for release to Lessee as restoration progresses, subject to and in accordance with Section 12.4(b12.4(a). Lessor and Lessee hereby authorize and direct (i) any insurer insurer, to make payment in excess of the Threshold Amount under policies of casualty insurance required to be maintained by Lessee pursuant to Section 9.1(a) directly to the Proceeds Trustee instead of to Lessor and Lessee jointly, and (ii) any Governmental Agency to make payments of any Net Condemnation Proceeds in excess of the Threshold Amount directly to the Indenture Proceeds Trustee instead of to Lessor and/or Lessee; and each of Lessee and Lessor hereby appoints the Proceeds Trustee as its attorney-in-fact to endorse any draft therefor for the purposes set forth in this LeaseLease after approval by Lessee of the Proceeds Trustee, if the Proceeds Trustee is other than the Lender. In the event that a Casualty shall occur at such time as Lessee shall not have maintained property or casualty insurance to the extent required by said Section 9.1(a) (i.e., Lessee is self insuringself-insuring in whole, or in part), Lessee shall, within thirty shall be obligated to pay itself towards restoration the amount it self insures. Lessee shall be obligated to pay the Threshold Amount (30or any amount it self-insured) days of the Casualty, pay towards restoration costs prior to the Indenture Trustee the amount disbursement of the proceeds that would have been payable had such insurance been in effect and such amount shall constitute a part of any funds from the Restoration Fund for all purposes hereof. Notwithstanding the foregoing provisions of this Article 12, so long as a Lease Event of Default shall be continuing, any amount that would otherwise be payable to or for the account of Lessee pursuant to this Article 12 shall be paid to the Indenture Trustee (or to Lessor when the Debt Documents shall not be in effect) as security for the obligations of Lessee under this Lease and, at such time thereafter as the Lease Event of Default shall have been waived or no longer be continuing, unless Lessor shall be exercising its remedies under Section 17.1, such amount shall be paid promptly to Lessee or the Indenture Trustee in accordance with this Lease (subject to other terms hereof)Fund.
(ba) The Restoration Fund, if any, shall be disbursed by the Indenture Proceeds Trustee by wire transfer of immediately available funds within five (5) Business Days of the last submission made pursuant to and in accordance with the following conditions (provided that there shall be no more than one disbursement during each month):
(i) Lessee, prior to the disbursement of any sums by the Indenture Trustee from the Restoration Fund, shall have paid the first $5,000,000 of the costs of such restoration (such initial $5,000,000 payment representing the insurance proceeds, or self insurance obligation, as applicable, not delivered to the Indenture Trustee) as evidenced by paid receipts delivered to the Indenture Trustee from one or more of Lessee’s contractors hired in connection with such restoration accompanied by partial releases of liens in respect of such payment(s).
(ii) At the time of any disbursement, no Lease Event of Default shall exist and, subject to Article 7, no mechanics’ or materialmen’s liens shall have been filed and remain undischarged, unbonded or not insured over.
(iiiii) Disbursements (subject to the holdback in Section 12.4(b)(v12.4(a)(iv) below) shall be made from time to time in an amount not exceeding the hard and soft cost of the work and costs incurred since the last disbursement upon receipt of (1) satisfactory evidence, including architects’ certificates when required pursuant to Section 8.3, of the stage of completion, of the estimated cost of completion and of performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (2) partial releases of liens from Lessee’s general contractor in respect of the disbursement made pursuant to the immediately preceding request, and (3) other reasonable evidence of cost incurred (whether or not paid) so that the Indenture Proceeds Trustee is able to verify that the amounts disbursed from time to time are represented by work that is completed in place or delivered to the site and free and clear of (subject to Article 7) ), mechanics’ and materialmen’s lien claims.
(iviii) Each request for disbursement shall be accompanied by a certificate of Lessee (1) agreeing to use amounts disbursed for the costs described in Section 12.4(b)(iii12.4(a)(iv), (2) describing the work, materials or other costs or expenses for which payment is requested, (3) stating the cost incurred in connection therewith, and(4) stating that Lessee has paid costs and expenses for such work in an amount equal to the self insured and/or deductible amounts as permitted by Section 9.1(b) (and attaching thereto evidence thereof reasonable satisfactory to Lessor) and (5) stating that Lessee has not previously received payment for such work or expense and the certificate to be delivered by Lessee upon completion of the work shall, in addition, state that the work has been substantially completed and complies with the applicable requirements of this Lease.
(iv) The Proceeds Trustee shall retain ten percent (10%) of the amounts otherwise disbursable until the restoration is at least fifty percent (50%) complete, and thereafter five percent (5%) until the restoration is substantially complete.
(v) The Restoration Fund shall be kept by the Proceeds Trustee in a separate interest-bearing federally insured account or invested in Permitted Investments (as directed by, or on behalf of, Lessee).
(vi) Prior to commencement of restoration and at any time during restoration, if the estimated cost of restoration, as reasonably determined by the Proceeds Trustee, exceeds the then amount of the Restoration Fund, Lessee shall fund at its own expense the costs of such restoration until the remaining Restoration Fund is sufficient for the completion of the restoration. In the case of Casualty, any sum in the Restoration Fund which remains in the Restoration Fund upon the completion of restoration shall be paid to Lessee. In the case of Condemnation, any sum in the Restoration Fund which remains in the Restoration Fund upon the completion of restoration shall be applied as set forth in Section 12.2.
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Samples: Lease Agreement (Cost Plus Inc/Ca/)
