Common use of Unavailability of Proceeds Clause in Contracts

Unavailability of Proceeds. Upon the occurrence of a Casualty in which any individual Leased Property is rendered Unsuitable for its Intended Use, and if the applicable Facility Mortgagee (i) applies all or any portion of the applicable insurance proceeds to repay the applicable Facility Mortgage and therefore any portion of the proceeds are not available for restoration or (ii) otherwise refuses in writing to make any portion of such proceeds available to be used for restoration within a commercially reasonable period of time in light of the nature of the Casualty event, then, unless Landlord, in Landlord's sole and absolute discretion, agrees to make available to Tenant funds in an amount equal to the amount of proceeds so applied or withheld as aforesaid by such Facility Mortgagee, Tenant may elect by written notice to Landlord ("Limited Termination Election") to terminate this Lease as it relates to the applicable Leased Property. Upon Landlord's receipt of a Limited Termination Election under this Paragraph 17(b) or under Xxxxxxxxx 00(x), Xxxxxxxx shall notify Tenant in writing as to whether Landlord intends to make such funds available and shall deliver such notice to Tenant not later than ten (10) Business Days after receiving written notice from the applicable Facility Mortgagee that such Facility Mortgagee has applied or intends to apply (or has made a final determination not to disburse) the insurance proceeds (it being acknowledged and agreed by the parties hereto that if Landlord advances any funds under this Paragraph 17(b), the Lease Basis will not be increased in connection with any such funding). Such Limited Termination Election shall be exercised, if at all, by written termination notice given during the fifteen (15) Business Day period after Tenant's receipt of such notice from Landlord (time being of the essence with respect to the giving of such termination notice by Tenant within such time period), and shall be effective on the day on which the applicable insurance company (or insurance companies) fund the proceeds of the applicable insurance policies and the proceeds thereof are actually applied by the applicable Facility Mortgagee in reduction of the principal amount of the applicable Facility Mortgage. Upon the effective date of the transactions contemplated by the Limited Termination Election (i) Tenant shall immediately (x) assign Tenant's rights in and to all insurance proceeds for such damage or destruction to Landlord and any applicable Facility Mortgagee, and (y) pay to Landlord an amount equal to the deductible or self-insured retention amount under each insurance policy under which a claim was paid, and (ii) from and after such effective date until the Expiration Date, the Rent payable monthly under this Lease shall be reduced in an amount equal to the Deleted Property Rent Adjustment, and the applicable Deleted Property shall no longer be considered a Leased Property for the purposes of this Lease other than Paragraph 18(f) and Paragraph 19(c).

Unavailability of Proceeds. Upon the occurrence of a Casualty in which any individual Leased Property is rendered Unsuitable for its Intended Use, and if the applicable Facility Mortgagee (i) applies all or any portion of the applicable insurance proceeds to repay the applicable Facility Mortgage and therefore any portion of the proceeds are not available for restoration or (ii) otherwise refuses in writing to make any portion of such proceeds available to be used for restoration within a commercially reasonable period of time in light of the nature of the Casualty event, then, unless Landlord, in Landlord's sole and absolute discretion, agrees to make available to Tenant funds in an amount equal to the amount of proceeds so applied or withheld as aforesaid by such the Facility Mortgagee, Tenant may elect by written notice to Landlord either ("Limited Termination Election"x) to terminate this Lease as it relates and purchase the Leased Property from Landlord on the terms set forth below ("Termination/Purchase Election") or (y) to use Tenant's own funds to restore the Leased Property to its condition prior to the applicable Leased PropertyCasualty event (the "Restoration Election"). Upon Landlord's receipt of a Limited Termination Election under this Paragraph 17(b) or under Xxxxxxxxx 00(x), Xxxxxxxx Landlord shall notify Tenant in writing as to whether Landlord intends to make such funds available and shall deliver such notice to Tenant not later than ten (10) Business Days after receiving written notice from the applicable Facility Mortgagee that such Facility Mortgagee has applied or intends to apply (or has made a final determination not to disburse) the insurance proceeds (it being acknowledged and agreed proceeds. Tenant shall make the Termination/Purchase Election or the Restoration Election by the parties hereto that if Landlord advances any funds under this Paragraph 17(b), the Lease Basis will not be increased in connection with any such funding). Such Limited Termination Election shall be exercised, if at all, by written termination notice Notice given during the fifteen (15) Business Day period after Tenant's receipt of such notice from Landlord (time being of the essence with respect to the giving of such termination notice by Tenant within such time periodTenant), and shall be effective on the day on which the applicable insurance company (or insurance companies) fund the proceeds of the applicable insurance policies and the proceeds thereof are actually applied by the applicable Facility Mortgagee in reduction of the principal amount of the applicable Facility Mortgage. Upon the The effective date of the transactions contemplated by the Limited Termination Termination/Purchase Election shall be no later than ten (i10) Business Days after the distribution or payment of the insurance proceeds, time being of the essence. Until the effective date of such transactions, Tenant shall continue to be obligated to pay Rent hereunder as if such Casualty did not occur. At the closing of the transactions contemplated by the Termination/Purchase Election, (A) Landlord shall cause PSLT-BLC Holdings to execute and deliver the documents contemplated in Paragraph 14(b) of the Agreement Regarding Leases and to otherwise comply with the terms and conditions of such Paragraph to the extent applicable to the conveyance to Tenant of the Leased Property, and (B) Tenant shall immediately (x1) assign Tenant's rights in and to all insurance proceeds for such damage or destruction to Landlord and any applicable Facility Mortgagee, and (y2) pay to Landlord an amount equal to the deductible positive difference, if any, between the (a) Minimum Option Purchase Price (determined on an individual basis for the applicable Leased Property using the methodology set forth in the definition of Minimum Option Purchase Price in the Agreement Regarding Leases) minus (b) the amount of the Casualty insurance proceeds actually paid by the applicable insurance company (or self-insured retention insurance companies). In addition, to the extent that Landlord or any of its Affiliates would recognize a gain for federal income tax purposes on the sale of the Leased Property contemplated in this Paragraph, then at the closing of such sale Tenant shall also pay to Landlord the amount under each insurance policy under by which a claim was paidsuch recognized gain exceeds the sum of the following: (i) the cash proceeds from the sale of the Leased Property, and plus (ii) any net operating losses for federal income tax purposes carried over from and after such Brookdale Living Communities, Inc. with respect to taxable years ending on or prior to the Commencement Date which remain unused as of the effective date until of the Expiration Datesale, plus (iii) any net increase in the Rent aggregate amount of Facility Mortgages subsequent to the Commencement Date encumbering the Leased Property, except to the extent that the proceeds of such increased borrowings are disbursed to Tenant or any of Tenant's Affiliates pursuant to Paragraph 12(c) of the Agreement Regarding Leases, minus (iv) any net reduction, subsequent to the Commencement Date in the aggregate amount of Facility Mortgages encumbering the Property; provided, however, that in no event will the amount payable monthly under this Lease shall be reduced sentence or under the corresponding sentence within Paragraph 17(b) of any of the other Property Leases (as defined in the Agreement Regarding Leases) in the aggregate, together with all payments theretofore made or thereafter made under Paragraph 14(a) of the Agreement Regarding Leases, exceed $75,000,000. If Tenant makes the Restoration Election, then the amount that Tenant expends in such repair and restoration (in an amount equal not to exceed the Deleted Property Rent Adjustment, and amount of insurance proceeds applied by the applicable Deleted Property Facility Mortgagee) shall no longer be considered a Leased Property for deducted from the purposes Lease Basis upon the completion of this Lease other than Paragraph 18(f) and Paragraph 19(c)such work.

Unavailability of Proceeds. Upon the occurrence of a Casualty in which any individual Leased Property is rendered Unsuitable for its Intended Use, and if the applicable Facility Mortgagee (i) applies all or any portion of the applicable insurance proceeds to repay the applicable Facility Mortgage and therefore any portion of the proceeds are not available for restoration or (ii) otherwise refuses in writing to make any portion of such proceeds available to be used for restoration within a commercially reasonable period of time in light of the nature of the Casualty event, then, unless Landlord, in Landlord's sole and absolute discretion, agrees to make available to Tenant funds in an amount equal to the amount of proceeds so applied or withheld as aforesaid by such Facility Mortgagee, Tenant may elect by written notice to Landlord ("Limited Termination Election") to terminate this Lease as it relates to the applicable Leased Property. Upon Landlord's receipt of a Limited Termination Election under this Paragraph 17(b) or under Xxxxxxxxx 00(xParagraph 17(a), Xxxxxxxx Landlord shall notify Tenant in writing as to whether Landlord intends tx xxxxxxx Xxxxxxxx xxxxxxs to make such funds available and shall deliver such notice to Tenant not later than ten (10) Business Days after receiving written notice from the applicable Facility Mortgagee that such Facility Mortgagee has applied or intends to apply (or has made a final determination not to disburse) the insurance proceeds (it being acknowledged and agreed by the parties hereto that if Landlord advances any funds under this Paragraph 17(b), the Lease Basis will not be increased in connection with any such funding). Such Limited Termination Election shall be exercised, if at all, by written termination notice given during the fifteen (15) Business Day period after Tenant's receipt of such notice from Landlord (time being of the essence with respect to the giving of such termination notice by Tenant within such time period), and shall be effective on the day on which the applicable insurance company (or insurance companies) fund the proceeds of the applicable insurance policies and the proceeds thereof are actually applied by the applicable Facility Mortgagee in reduction of the principal amount of the applicable Facility Mortgage. Upon the effective date of the transactions contemplated by the Limited Termination Election (i) Tenant shall immediately (x) assign Tenant's rights in and to all insurance proceeds for such damage or destruction to Landlord and any applicable Facility Mortgagee, and (y) pay to Landlord an amount equal to the deductible or self-insured retention amount under each insurance policy under which a claim was paid, and (ii) from and after such effective date until the Expiration Date, the Rent payable monthly under this Lease shall be reduced in an amount equal to the Deleted Property Rent Adjustment, and the applicable Deleted Property shall no longer be considered a Leased Property for the purposes of this Lease other than Paragraph 18(f) and Paragraph 19(c).