Use of Insurance Proceeds. Mortgagee shall make the net insurance proceeds received by it (after reimbursement of Mortgagee’s reasonable out-of pocket costs of collecting and disbursing the same) available to Mortgagor to pay the cost of restoration, repair and rebuilding of the Mortgaged Property, subject to all of the following conditions precedent: (a) There shall be no Event of Default in existence at the time of any disbursement of the insurance proceeds; (b) Mortgagee shall have determined, in its reasonable discretion, that the cost of restoration, repair and rebuilding is and will be equal to or less than the amount of insurance proceeds and other funds deposited by Mortgagor with Mortgagee for restoration and repair of the Mortgaged Property; (c) Mortgagee shall have determined, in its reasonable discretion, that the restoration, repair and rebuilding can be completed in accordance with plans and specifications approved by Mortgagee (such approval not to be unreasonably withheld), and in accordance with applicable laws, codes, regulations and ordinances; (d) All funds shall be disbursed, at Mortgagee’s option, in accordance with Mortgagee’s customary disbursement procedures for construction loans; (e) The Casualty results in damage of $1,000,000.00 or less; and (f) The restoration, repair and rebuilding of the Mortgaged Property can be completed within nine (9) months following the date of the Casualty, or such additional period of time as Mortgagee, in its reasonable discretion, shall permit. If any of these conditions shall not be satisfied, then Mortgagee shall have the right to either use the insurance proceeds to prepay the Obligations or make such proceeds available for restoration, repair and rebuilding of the Mortgaged Property. If any insurance proceeds shall remain after completion of the restoration, repair and rebuilding of the Mortgaged Property, they shall be disbursed to Mortgagor, or the Person legally entitled thereto, or at the Mortgagee’s discretion, used to prepay the Obligations. In the event such insurance proceeds are made available for restoration and repair by the Mortgagee, Mortgagor shall pay all costs incurred by Mortgagee in connection with the application of such insurance proceeds (including but not limited to reasonable costs incurred by Mortgagee, and a title company or agent approved by Mortgagee in overseeing the disbursement of such insurance proceeds), and the Improvements shall be restored or rebuilt so as to be of at least equal value and substantially the same character as prior to such damage or destruction.
Appears in 2 contracts
Sources: Construction Loan Mortgage (Cardinal Ethanol LLC), Construction Loan Mortgage (One Earth Energy LLC)
Use of Insurance Proceeds. Mortgagee (a) All proceeds of casualty insurance on the Development shall make the net insurance proceeds received by it (after reimbursement of Mortgagee’s reasonable out-of pocket costs of collecting and disbursing the same) be made available to Mortgagor to pay for the cost of restoration, restoration and repair and rebuilding if any part of the Mortgaged PropertyDevelopment is damaged or destroyed in whole or in part by fire or other casualty. All work required to be performed in connection with such restoration and repair is hereinafter called the "Repair Work." Such insurance proceeds shall be deposited by Tenant directly into a segregated account established by Tenant at a local bank or other local financial institution for the purpose of funding the Repair Work. Tenant shall give Landlord notice as to the location of such account and provide monthly account statements to Landlord. This account is established as an assurance fund to guarantee the completion of Repair Work. Tenant does retain the right to withdraw funds from this account to pay for the Repair Work and to any excess funds in the account following completion of the Repair Work. Upon receipt of such proceeds in the account, subject Tenant shall promptly undertake and complete the Repair Work in accordance with this Article XII, and upon completion of the Repair Work, Tenant shall furnish Landlord and each Leasehold Mortgagee with (i) a reasonably detailed report describing the damage or destruction, the Repair Work performed, and the cost thereof, (ii) a certificate executed and acknowledged by a senior officer of Tenant, in form and substance reasonably satisfactory to Landlord and each Leasehold Mortgagee, stating that all of the following conditions precedent:
obligations of Tenant to any contractor, subcontractor, materialman, supplier or any other person performing Repair Work, providing services or supplying material in connection with the Repair Work have been satisfied and discharged in full or otherwise provided for to Landlord's and each Leasehold Mortgagee's reasonable satisfaction, together with all appropriate lien waivers in connection therewith, (aiii) There a copy of the plans and specifications prepared in connection with Repair Work, and (iv) a certificate of the Architect and of Tenant certifying that the Repair Work has been completed substantially in accordance with the plans and specifications for the Repair Work. If the insurance proceeds are insufficient to pay for the Repair Work, Tenant shall, nevertheless, complete the Repair Work and pay for it in full using its own funds. Tenant shall submit a certificate of a licensed and qualified architect or engineer, as may be appropriate (an "Architect"), certifying that the Repair Work has been completed substantially in accordance with the plans and specifications for the Repair Work, and its own certificate certifying that the Repair Work has been completed and paid for in full and specifying the amount paid by Tenant. Any certificates required to be given by Tenant under this Article XII shall be no Event executed and acknowledged by a senior officer of Default Tenant and shall be in existence at the time of any disbursement of the insurance proceeds;form and substance reasonably satisfactory to Landlord and each Leasehold Mortgagee.
(b) Mortgagee shall have determinedPromptly following any damage or destruction to the Development by fire or casualty, in its reasonable discretion, that the cost Tenant shall:
(i) give written notice of restoration, repair such damage or destruction to Landlord and rebuilding is and will be equal to or less than the amount of insurance proceeds and other funds deposited by Mortgagor with Mortgagee for restoration and repair of the Mortgaged Propertyeach Leasehold Mortgagee;
(cii) Mortgagee shall have determined, in its reasonable discretion, that the restoration, repair and rebuilding can be completed in accordance with engage an Architect to prepare plans and specifications approved by Mortgagee (such approval not to be unreasonably withheld), and in accordance with applicable laws, codes, regulations and ordinancesfor the Repair Work;
(diii) All funds shall be disbursed, at Mortgagee’s option, in accordance with Mortgagee’s customary disbursement procedures cause the Architect to prepare preliminary plans and specifications for construction loansthe Repair Work;
(eiv) The Casualty results prepare an itemized cost breakdown of the total cost of the Repair Work by appropriate trades and other costs entailed in damage the Repair Work;
(v) produce a proposed contract (or series of $1,000,000.00 contracts with subcontractors and a contract with a construction manager) between Tenant and a reputable contractor or lesscontractors experienced in the performance of comparable work for the performance of the Repair Work; each contract shall provide for no less than a five percent (5%) holdback and all such contracts shall be made subject to, and shall comply with, the JCC Equity Program;
(vi) produce a building permit, if required, issued by the appropriate government agency or agencies authorizing the Repair Work as complying with all applicable codes and obtain all other licenses and permits required by law as a condition to the commencement of the Repair Work;
(vii) deliver evidence satisfactory to Landlord and each Leasehold Mortgagee that the Development is capable of substantial restoration and reconstruction of its condition immediately prior to the fire or casualty; and
(fviii) The restoration, repair and rebuilding deliver an agreement by Tenant to complete the Repair Work (which completion may initially be evidenced by the issuance of a temporary certificate of occupancy for the Mortgaged Property can be completed within nine (9Development) months following the date in a reasonable amount of the Casualty, or such additional period time plus periods of time as performance by Tenant is prevented by Force Majeure Events (other than financial inability) specified in Section 32.2(a) of this Lease after occurrence of the fire or casualty. The identity of the Architect and contractor, and the preliminary plans and specifications shall be subject to the written approval of Landlord and each Leasehold Mortgagee, which approval Landlord and each Leasehold Mortgagee agree not to unreasonably withhold, financially condition or delay. No material changes in its reasonable discretionapproved plans and specifications shall be permitted without the prior written consent of Landlord, shall permit. If any of these conditions City and each Leasehold Mortgagee, which consent shall not be satisfied, then Mortgagee shall have the right to either use the insurance proceeds to prepay the Obligations or make such proceeds available for restoration, repair and rebuilding of the Mortgaged PropertyFinancially Conditioned. If any insurance proceeds shall remain after On completion of the restorationRepair Work and payment therefore in full, repair Tenant shall submit to Landlord and rebuilding each Leasehold Mortgagee a certificate of the Mortgaged PropertyArchitect and of Tenant certifying that the Repair Work is complete in accordance with the plans and specifications for the Repair Work, they and Tenant shall be disbursed submit a certificate stating that all of the obligations of Tenant to Mortgagorany contractor, subcontractor, materialman, supplier or any other person performing the Person legally entitled theretoRepair Work, providing services or at the Mortgagee’s discretion, used to prepay the Obligations. In the event such insurance proceeds are made available for restoration and repair by the Mortgagee, Mortgagor shall pay all costs incurred by Mortgagee supplying material in connection with the application of such insurance proceeds (including but not limited to reasonable costs incurred by MortgageeRepair Work have been satisfied and discharged in connection therewith, and a title company or agent approved by all appropriate lien waivers must be delivered to Landlord, City and each Leasehold Mortgagee in overseeing the disbursement of such insurance proceeds), and the Improvements shall be restored or rebuilt so as to be of at least equal value and substantially the same character as prior to such damage or destructionthat time.
Appears in 2 contracts
Sources: Lease Agreement (Vici Properties Inc.), Lease Agreement (CAESARS ENTERTAINMENT Corp)
Use of Insurance Proceeds. Mortgagee shall make the net insurance proceeds received by it (after reimbursement of Mortgagee’s reasonable out-of pocket costs of collecting and disbursing the same) available to Mortgagor to pay the cost of restoration, repair and rebuilding of the Mortgaged Property, subject to all of the following conditions precedent:
(a) There shall be no Event of Default in existence at the time of any disbursement of the insurance proceeds;
(b) Mortgagee shall have determined, in its reasonable discretion, that the cost of restoration, repair and rebuilding is and will be equal to or less than the amount of insurance proceeds and other funds deposited by Mortgagor with Mortgagee for restoration and repair of the Mortgaged Property;
(c) Mortgagee shall have determined, in its reasonable discretion, that the restoration, repair and rebuilding can be completed in accordance with plans and specifications approved by Mortgagee (such approval not to be unreasonably withheld), and in accordance with applicable laws, codes, regulations and ordinances;
(d) All funds shall be disbursed, at Mortgagee’s option, in accordance with Mortgagee’s customary disbursement procedures for construction loans;
(e) The Casualty results in damage of $1,000,000.00 500,000.00 or less; and
(f) The restoration, repair and rebuilding of the Mortgaged Property can be completed within nine (9) months following the date of the Casualty, or such additional period of time as Mortgagee, in its reasonable discretion, shall permit. If any of these conditions shall not be satisfied, then Mortgagee shall have the right to either use the insurance proceeds to prepay the Obligations or make such proceeds available for restoration, repair and rebuilding of the Mortgaged Property. If any insurance proceeds shall remain after completion of the restoration, repair and rebuilding of the Mortgaged Property, they shall be disbursed to Mortgagor, or the Person legally entitled thereto, or at the Mortgagee’s discretion, used to prepay the Obligations. In the event such insurance proceeds are made available for restoration and repair by the Mortgagee, Mortgagor shall pay all costs incurred by Mortgagee in connection with the application of such insurance proceeds (including but not limited to reasonable costs incurred by Mortgagee, and a title company or agent approved by Mortgagee in overseeing the disbursement of such insurance proceeds), and the Improvements shall be restored or rebuilt so as to be of at least equal value and substantially the same character as prior to such damage or destruction.
Appears in 2 contracts
Sources: Construction Loan Mortgage (Highwater Ethanol LLC), Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Financing Statement (Highwater Ethanol LLC)
Use of Insurance Proceeds. Mortgagee shall make the net insurance proceeds received by it it, which amount shall be net of any amount payable pursuant to the Senior Mortgage (as that term is hereinafter defined) (after reimbursement of Mortgagee’s reasonable out-of of-pocket costs of collecting and disbursing the same) available to Mortgagor to pay the cost of restoration, repair and rebuilding of the Mortgaged Property, subject to all of the following conditions precedent; provided that subparagraphs (b) through (f) shall apply only if the net insurance proceeds are $100,000 or more:
(a) If the net insurance proceeds are less than $100,000, the Mortgagee shall pay the net proceeds to the Mortgagor. The Mortgagor shall proceed promptly to replace, repair, rebuild and restore the Mortgaged Property to substantially the same condition as existed before the taking or event causing the damage or destruction, with such changes, alterations and modifications (including substitution or addition of other property) as may be desired by the Mortgagor and will be suitable for continued operation of the Mortgagor for the business purposes of the Mortgagor, and the Mortgagor will pay all costs thereof. If the net proceeds are not sufficient to pay such costs in full, the Mortgagor shall pay that portion of the cost in excess of the amount of net proceeds and shall complete such repair, replacement, rebuilding or restoration as provided in the Indenture;
(b) There shall be no Event of Default in existence at the time of any disbursement of the insurance proceeds, unless such Event of Default would be cured upon the application of such net proceeds; provided, however, this condition precedent shall be waived if Mortgagee is otherwise directed by the owners of a majority in aggregate principal amount of the Bonds outstanding;
(bc) Mortgagee shall have determined, based upon a certificate of an Independent Engineer (as defined in its reasonable discretionthe Indenture), that the cost of restoration, repair and rebuilding is and will be equal to or less than the amount of insurance proceeds and other funds deposited by Mortgagor with Mortgagee for restoration and repair of the Mortgaged PropertyMortgagee;
(cd) Mortgagee shall have determined, in its reasonable discretionbased upon a certificate of an Independent Engineer, that the restoration, repair and rebuilding can be completed in accordance with plans and specifications approved by Mortgagee Independent Engineer (such approval not to be unreasonably withheld), and in accordance with applicable laws, codes, regulations codes and ordinances;
(de) All funds shall be disbursed, at Mortgagee’s option, disbursed as provided in accordance with Mortgagee’s customary disbursement procedures for construction loans;
(e) The Casualty results in damage of $1,000,000.00 or lessthe Indenture; and
(f) The restoration, repair and rebuilding of the Mortgaged Property can be completed within nine (9) months following the date of the Casualty, or such additional period of time as Mortgagee, in its reasonable discretion, shall permit. If any of these conditions shall not be satisfied, except as otherwise provided above, then Mortgagee shall have the right to either use apply the insurance proceeds first to the Rebate Fund (as defined in the Indenture) in accordance with the Indenture then to prepay the Loan Obligations or make such proceeds available for restoration, repair by transferring the moneys on deposit in the Condemnation and rebuilding of Awards Fund to the Mortgaged PropertyRedemption Account established pursuant to the Indenture. If any insurance proceeds shall remain after completion of the restoration, repair and rebuilding of the Mortgaged Property, they shall be disbursed to Mortgagor, or applied in accordance with the Person legally entitled thereto, or at the Mortgagee’s discretion, used to prepay the ObligationsIndenture. In the event such insurance proceeds are made available for restoration and repair by the Mortgagee, Mortgagor shall pay all costs incurred by Mortgagee in connection with the application of such insurance proceeds (including but not limited to reasonable costs incurred by Mortgagee, and a title company or agent approved by Mortgagee in overseeing the disbursement of such insurance proceeds), and the Improvements shall be restored or rebuilt so as to be of at least equal value and substantially the same character as prior to such damage or destruction.
Appears in 1 contract
Use of Insurance Proceeds. Mortgagee shall make the net insurance proceeds received by it (after reimbursement of Mortgagee’s reasonable out-of pocket costs of collecting and disbursing the same) available to Mortgagor to pay the cost of restoration, repair and rebuilding of the Mortgaged Property, subject to all of the following conditions precedent:
(a) There shall be no Event of Default in existence at the time of any disbursement of the insurance proceeds;; and
(b) Mortgagee shall have determined, in its reasonable discretion, that the cost of restoration, repair and rebuilding is and will be equal to or less than the amount of insurance proceeds and other funds deposited by Mortgagor with Mortgagee for restoration and or Mortgagor has otherwise demonstrated to Mortgagee’s satisfaction the availability of funds to complete the restoration, repair of the Mortgaged Property;or rebuilding; and
(c) Mortgagee shall have determined, in its reasonable discretion, that the restoration, repair and rebuilding can be completed in accordance with plans and specifications approved by Mortgagee (such approval not to be unreasonably withheld), and in accordance with applicable laws, codes, regulations codes and ordinances;; and
(d) All funds shall be disbursed, at Mortgagee’s option, in accordance with Mortgagee’s customary disbursement procedures for construction loans;
loans (e) The Casualty results but in damage of $1,000,000.00 or less; and
(f) The restoration, repair any event in a manner consistent with the requirements and rebuilding of provisions contained in the Mortgaged Property can be completed within nine (9) months following the date of the Casualty, or such additional period of time as Mortgagee, in its reasonable discretion, shall permitLoan Agreement). If any of these conditions shall not be satisfied, then Mortgagee shall have the right to either use the insurance proceeds to prepay the Obligations or make such proceeds available for restoration, repair and rebuilding of the Mortgaged PropertyLoan Obligations. If any insurance proceeds shall remain after completion of the restoration, repair and rebuilding of the Mortgaged Property, they shall be disbursed to Mortgagor, or the Person legally entitled thereto, or at the Mortgagee’s discretion, used to prepay the Loan Obligations. In the event such insurance proceeds are made available for restoration and repair by the Mortgagee, Mortgagor shall pay all costs incurred by Mortgagee in connection with the application of such insurance proceeds (including but not limited to reasonable costs incurred by Mortgagee, and a title company or agent approved by Mortgagee in overseeing the disbursement of such insurance proceeds), and the Improvements shall be restored or rebuilt so as to be of at least equal value and substantially the same character as prior to such damage or destruction.
Appears in 1 contract
Use of Insurance Proceeds. Mortgagee Lender shall make the net insurance proceeds received by it (after reimbursement of MortgageeLender’s reasonable out-of pocket costs of collecting and disbursing the same) available to Mortgagor Borrower to pay the cost of restoration, repair and rebuilding of the Mortgaged Property, subject to all of the following conditions precedentconditions:
(a) There shall be no Event of Default in existence at the time of any disbursement of the insurance proceeds;.
(b) Mortgagee Lender shall have determined, in its reasonable discretion, that the cost of restoration, repair and rebuilding is and will be equal to or less than the amount of insurance proceeds and other funds deposited by Mortgagor Borrower with Mortgagee for restoration and repair of the Mortgaged Property;Lender.
(c) Mortgagee Lender shall have determined, in its reasonable discretion, that the restoration, repair and rebuilding can be completed in accordance accordance, with plans and specifications approved by Mortgagee Lender (such approval not to be unreasonably withheld), in accordance with codes and ordinances and in accordance with applicable lawsthe terms, codesand within the time requirements in order to prevent termination, regulations of the Big Stone Plant Property Lease; the Access and ordinances;Rail Agreement or any other Lease, and in any event not less than six (6) months prior to the Maturity Date.
(d) All funds shall be disbursed, at MortgageeLender’s option, in accordance with MortgageeLender’s customary disbursement procedures for construction loans;.
(e) The Casualty results in damage of $1,000,000.00 or less; and
shall have occurred more than twelve (f) The restoration, repair and rebuilding of the Mortgaged Property can be completed within nine (912) months following prior to the date of the Casualty, or such additional period of time as Mortgagee, in its reasonable discretion, shall permitMaturity Date. If any of these conditions shall not be satisfied, then Mortgagee Lender shall have the right to either use the insurance proceeds to prepay the Obligations or make such proceeds available for restoration, repair and rebuilding of 2007 Term Loan in accordance with the Mortgaged PropertyNote. If any insurance proceeds shall remain after completion of the restoration, repair and rebuilding of the Mortgaged Property, they shall be disbursed to Mortgagor, or the Person legally entitled theretoBorrower, or at the MortgageeLender’s discretion, used to prepay the Obligations. In the event such insurance proceeds are made available for restoration and repair by the Mortgagee, Mortgagor shall pay all costs incurred by Mortgagee 2007 Term Loan in connection accordance with the application of such insurance proceeds (including but not limited to reasonable costs incurred by Mortgagee, and a title company or agent approved by Mortgagee in overseeing the disbursement of such insurance proceeds), and the Improvements shall be restored or rebuilt so as to be of at least equal value and substantially the same character as prior to such damage or destructionNote.
Appears in 1 contract
Use of Insurance Proceeds. Mortgagee Lender shall make the net insurance proceeds received by it (after reimbursement of MortgageeLender’s reasonable out-of pocket costs of collecting and disbursing the same) available to Mortgagor Borrower to pay the cost of restoration, repair and rebuilding of the Mortgaged Property, subject to all of the following conditions precedentconditions:
(a) There shall be no Event of Default in existence at the time of any disbursement of the insurance proceeds;.
(b) Mortgagee Lender shall have determined, in its reasonable discretion, that the cost of restoration, repair and rebuilding is and will be equal to or less than the amount of insurance proceeds and other funds deposited by Mortgagor Borrower with Mortgagee for restoration and repair of the Mortgaged Property;Lender.
(c) Mortgagee Lender shall have determined, in its reasonable discretion, that the restoration, repair and rebuilding can be completed in accordance with plans and specifications approved by Mortgagee Lender (such approval not to be unreasonably withheld), in accordance with codes and ordinances and in accordance with applicable lawsthe terms, codesand within the time requirements in order to prevent termination, regulations of the Big Stone Plant Property Lease, the Access and ordinances;Rail Agreement or any other Lease, and in any event not less than six (6) months prior to the Maturity Date.
(d) All funds shall be disbursed, at MortgageeLender’s option, in accordance with MortgageeLender’s customary disbursement procedures for construction loans;.
(e) The Casualty results in damage of $1,000,000.00 or less; and
shall have occurred more than twelve (f) The restoration, repair and rebuilding of the Mortgaged Property can be completed within nine (912) months following prior to the date of the Casualty, or such additional period of time as Mortgagee, in its reasonable discretion, shall permitMaturity Date. If any of these conditions shall not be satisfied, then Mortgagee Lender shall have the right to either use the insurance proceeds to prepay the Obligations or make such proceeds available for restoration, repair and rebuilding of Expansion Loan in accordance with the Mortgaged PropertyNote. If any insurance proceeds shall remain after completion of the restoration, repair and rebuilding of the Mortgaged Property, they shall be disbursed to Mortgagor, or the Person legally entitled theretoBorrower, or at the MortgageeLender’s discretion, used to prepay the Obligations. In the event such insurance proceeds are made available for restoration and repair by the Mortgagee, Mortgagor shall pay all costs incurred by Mortgagee Expansion Loan in connection accordance with the application of such insurance proceeds (including but not limited to reasonable costs incurred by Mortgagee, and a title company or agent approved by Mortgagee in overseeing the disbursement of such insurance proceeds), and the Improvements shall be restored or rebuilt so as to be of at least equal value and substantially the same character as prior to such damage or destructionNote.
Appears in 1 contract
Use of Insurance Proceeds. Mortgagee shall make the net insurance proceeds received by it (after reimbursement of Mortgagee’s reasonable out-of of-pocket costs of collecting and disbursing the same) available to Mortgagor to pay the cost of restoration, repair and rebuilding of the Mortgaged Property, subject to all of the following conditions precedent:
: (a) There shall be no Event of Default in existence at the time of any disbursement of the insurance proceeds;
; (b) Mortgagee shall have determined, in its reasonable discretion, that the cost of restoration, repair and rebuilding is and will be equal to or less than the amount of insurance proceeds and other funds deposited by Mortgagor with Mortgagee for restoration and repair of the Mortgaged Property;
Mortgagee; (c) Mortgagee shall have determined, in its reasonable discretion, that the restoration, repair and rebuilding can be completed in accordance with plans and specifications approved by Mortgagee (such approval not to be unreasonably withheld), and in accordance with applicable laws, codes, regulations codes and ordinances;
; (d) All funds shall be disbursed, at Mortgagee’s option, in accordance with Mortgagee’s customary disbursement procedures for construction loans;
; and (e) The Casualty results in damage of $1,000,000.00 250,000.00 or less; and
(f) The restoration, repair and rebuilding of the Mortgaged Property can be completed within nine (9) months following the date of the Casualty, or such additional period of time as Mortgagee, in its reasonable discretion, shall permit. If any of these conditions shall not be satisfied, then Mortgagee shall have the right to either use the insurance proceeds to prepay the Obligations or make such proceeds available for restoration, repair and rebuilding of the Mortgaged PropertyObligations. If any insurance proceeds shall remain after completion of the restoration, repair and rebuilding of the Mortgaged Property, they shall be disbursed to Mortgagor, or the Person legally entitled thereto, or at the Mortgagee’s discretion, used to prepay the Obligations. In the event such insurance proceeds are made available for restoration and repair by the Mortgagee, Mortgagor shall pay all costs incurred by Mortgagee in connection with the application of such insurance proceeds (including but not limited to reasonable costs incurred by Mortgagee, and a title company or agent approved by Mortgagee in overseeing the disbursement of such insurance proceeds), and the Improvements shall be restored or rebuilt so as to be of at least equal value and substantially the same character as prior to such damage or destruction.14
Appears in 1 contract
Sources: Second Amended and Restated Construction Loan Mortgage (Cardinal Ethanol LLC)
Use of Insurance Proceeds. Mortgagee If the cost of Restoration is less than $250,000 and provided that there is no continuing Event of Default, the insurance proceeds shall be paid directly to Mortgagor for Restoration of the Improvements. If cost of Restoration is greater than $250,000, the Lender shall make the net insurance proceeds received by it (after reimbursement of Mortgageethe Lender’s reasonable out-of of-pocket costs of collecting and disbursing the same) available to the Mortgagor to pay the cost of restoration, repair and rebuilding Restoration of the Mortgaged Property, subject to all of the following conditions precedentconditions:
(a) There shall be no Event of Default in existence at the time of any disbursement of the insurance proceeds;.
(b) Mortgagee The Lender shall have determined, in its reasonable discretion, that the cost of restoration, repair and rebuilding Restoration is and will be equal to or less than the amount of insurance proceeds and other funds deposited by the Mortgagor with Mortgagee for restoration and repair of the Mortgaged PropertyLender;
(c) Mortgagee The Lender shall have determined, in its reasonable discretion, that the restoration, repair and rebuilding Restoration can be completed in accordance with plans and specifications approved by Mortgagee the Lender (such approval not to be unreasonably withheldwithheld or delayed), in accordance with applicable codes and ordinances and in accordance with applicable lawsthe terms, codesand within the time requirements in order to prevent termination, regulations of any Lease, and ordinancesin any event not less than six months prior to the Maturity Date;
(d) All funds Funds shall be held by the Lender and shall be disbursed, at Mortgageethe Lender’s option, in accordance with Mortgageethe Lender’s customary disbursement procedures for construction loans;
(i) the Casualty shall have occurred more than 12 months prior to the Maturity Date;
(e) The Casualty results in damage No Tenant and no group of $1,000,000.00 or less; and
Tenants (fi) The restoration, repair and rebuilding whose cumulative monthly rent obligations exceed 15% of the total monthly rental income of the Mortgaged Property can be completed within nine or (9ii) months following who lease, in the date aggregate more than 24,670 square feet of Net Rentable Area (as defined in the ▇▇▇▇▇ Agreement) immediately prior to the Casualty, shall have the right to terminate its Lease or their Leases as a result of the Casualty, or such additional period of time as Mortgagee, in its reasonable discretion, shall permit. If any of these conditions shall not be satisfied, then Mortgagee the Lender shall have the right to either use the insurance proceeds to prepay the Obligations or make such proceeds available for restoration, repair and rebuilding of without a Prepayment Fee in accordance with the Mortgaged PropertyLoan Documents. If any insurance proceeds shall remain after completion of the restoration, repair and rebuilding Restoration of the Mortgaged Property, they shall be disbursed to the Mortgagor, or the Person legally entitled thereto, or at the MortgageeLender’s discretion, used to prepay the Obligations. In the event such insurance proceeds are made available for restoration and repair by the Mortgagee, Mortgagor shall pay all costs incurred by Mortgagee Obligations without a Prepayment Fee in connection accordance with the application of such insurance proceeds (including but not limited to reasonable costs incurred by Mortgagee, and a title company or agent approved by Mortgagee in overseeing the disbursement of such insurance proceeds), and the Improvements shall be restored or rebuilt so as to be of at least equal value and substantially the same character as prior to such damage or destructionLoan Documents.
Appears in 1 contract
Use of Insurance Proceeds. (a) Subject to the conditions set forth below, all proceeds of casualty insurance on the Improvements shall be made available to pay for the cost of Restoration if any part of the Improvements are damaged or destroyed in whole or in part by fire or other casualty. Subject to Section 3.7, all such ----------- insurance proceeds, less the cost of collection, shall be paid into a trust account to be created by an independent third party ("Insurance Trustee") to be chosen by (i) the First Mortgagee if the Project Premises is encumbered by a First Mortgage or (ii) Developer and City in the event there is no First Mortgagee, within ten (10) days of when the proceeds are to be made available. Nothing herein shall make prohibit the net First Mortgagee from acting as the Insurance Trustee. If Developer or City for whatever reason, cannot or will not participate in the selection of the Insurance Trustee, then the other party shall select the Insurance Trustee. Developer shall name the Insurance Trustee appointed pursuant to this Section 16.2 as the sole loss payee on Developer's ------------ casualty insurance. If those parties who participate in the selection process cannot agree on the selection of the Insurance Trustee, either City or Developer may apply to the Circuit Court for the County for the appointment of a local bank having a capital surplus in excess of Two Hundred Million Dollars ($200,000,000) as the Insurance Trustee. The Insurance Trustee shall hold the insurance proceeds in trust to be disbursed in stages to pay for the cost of the Restoration, as hereafter provided. The Insurance Trustee shall deposit the insurance proceeds in an interest bearing account and any after tax interest earned thereon shall be added to the insurance proceeds. All fees and expenses of the Insurance Trustee shall be paid by Developer.
(b) Promptly following any damage or destruction to the Improvements by fire, casualty or otherwise, Developer shall:
(1) give written notice of such damage or destruction to City and each Mortgagee; and
(2) deliver an agreement by Developer to complete the Restoration in a reasonable amount of time plus periods of time as performance by Developer is prevented by Force Majeure events (other than financial inability) after occurrence of the fire or casualty.
(c) After satisfaction of the conditions specified in paragraph (b) of this Section, insurance proceeds shall be paid to Developer, or City, as the case may be, from time to time thereafter in installments, but not more frequently than once a month, upon application to be submitted from time to time by Developer to Insurance Trustee showing the cost of work, labor, services, materials, fixtures and equipment incorporated in the Restoration, or incorporated therein since the last previous application, and paid for by Developer or then due and owing. The amount of any installment to be paid to Developer shall be such proportion of the total insurance proceeds as the cost of work, labor, services, materials, fixtures and equipment theretofore incorporated by Developer into the Restoration bears to the total estimated cost of the Restoration by Developer, less all payments heretofore made to Developer out of the insurance proceeds. Upon completion of and payment for the Restoration by Developer, the balance of the insurance proceeds shall be paid over to Developer, subject to the rights of any Mortgagee named as an insured. If the estimated cost of any Restoration exceeds the insurance proceeds received by it (after reimbursement Insurance Trustee, then prior to the commencement of Mortgagee’s reasonable out-of pocket costs of collecting and disbursing the same) available to Mortgagor to pay such Restoration or thereafter if at any time that the cost to complete the Restoration exceeds the unapplied portion of restorationsuch insurance proceeds, repair Developer shall from time to time immediately deposit with Insurance Trustee cash funds in the amount of such excess, to be held and rebuilding applied by Insurance Trustee in accordance with the provisions hereof. If City elects to make the Restoration at Developer's expense, as provided in Section 16.1, then, as provided above with respect to ------------ Developer, Insurance Trustee shall pay over the insurance proceeds to City, from time to time, upon City's application accompanied by a certificate containing the statements required under clauses (i), (ii) and (iii) of Section 16.2(d)(1), ------------------ to the extent not previously paid to Developer pursuant to this Section 16.2(c), --------------- and Developer shall pay to Insurance Trustee, on demand, any sums which City certifies to be an estimate of the Mortgaged Propertyamount necessary to complete the Restoration, subject to all of less the following conditions precedent:undisbursed insurance proceeds.
(a1) There shall be submitted to Insurance Trustee the certificate of the Architect stating (i) that the sum then requested to be withdrawn either has been paid by Developer or is justly due to contractors, subcontractors, materialmen, engineers, architects or other Persons (whose names and addresses shall be stated) who have rendered or furnished work, labor, services, materials, fixtures or equipment for the work and giving a brief description of such work, labor, services, materials, fixtures or equipment and the principal subdivisions or categories thereof and the several amounts so paid or due to each of said Persons in respect thereof, and stating in reasonable detail the progress of the Restoration up to the date of said certificate; (ii) that no Event part of Default such expenditures has been or is being made the basis, in existence at any previous or then pending request, for the time withdrawal of any disbursement insurance money or has been made out of the proceeds of insurance received by Developer; and (iii) that the balance of the insurance proceeds;
(b) Mortgagee shall have determinedproceeds held by Insurance Trustee will be sufficient, upon completion of the Restoration, to pay for the same in its full, and stating in reasonable discretion, that detail an estimate of the cost of restorationsuch completion.
(2) There shall be furnished to Insurance Trustee appropriate sworn statements and lien waivers (which comply with the mechanics' lien laws of the State) from all Persons receiving payment under such draw.
(3) There shall be furnished to Insurance Trustee a title search, repair and rebuilding is and or a similar certificate of a title insurance company reasonably satisfactory to Insurance Trustee, showing that there are no liens affecting the Development or any part thereof in connection with work done, authorized or incurred at or relating to the Development which had not been discharged of record, except such as will be equal to or less than discharged upon payment of the amount of insurance proceeds and other funds deposited by Mortgagor with Mortgagee for restoration and repair of the Mortgaged Property;
(c) Mortgagee shall have determined, in its reasonable discretion, that the restoration, repair and rebuilding can be completed in accordance with plans and specifications approved by Mortgagee (such approval not then requested to be unreasonably withheld), and in accordance with applicable laws, codes, regulations and ordinances;
(d) All funds shall be disbursed, at Mortgagee’s option, in accordance with Mortgagee’s customary disbursement procedures for construction loans;withdrawn.
(e) The Casualty results Notwithstanding anything in damage this Section 16.2 to the contrary, ------------ insurance proceeds for any fire or casualty of less than Forty Million Dollars ($1,000,000.00 or less; and
(f40,000,000) The restoration, repair and rebuilding of the Mortgaged Property can be completed within nine (9) months following the date of the Casualty, or such additional period of time as Mortgagee, in its reasonable discretion, shall permit. If any of these conditions shall not be satisfiedpaid to the Insurance Trustee to be disbursed as provided in Section 16.2, then Mortgagee but instead such proceeds shall have be paid by the insurer ------------ directly into a segregated account established by Developer for the purpose of funding the Restoration. This account is established as an assurance fund to guarantee the completion of the Restoration. Developer retains the right to either use withdraw funds from this account to pay for the insurance proceeds Restoration and to prepay any excess funds in the Obligations or make such proceeds available for restoration, repair and rebuilding of the Mortgaged Property. If any insurance proceeds shall remain after account following completion of the restoration, repair and rebuilding of the Mortgaged Property, they shall be disbursed to Mortgagor, or the Person legally entitled thereto, or at the Mortgagee’s discretion, used to prepay the ObligationsRestoration. In the event such insurance proceeds are made available for restoration and repair by the Mortgagee, Mortgagor shall pay all costs incurred by Mortgagee in connection with the application Upon receipt of such insurance proceeds (including but not limited to reasonable costs incurred by Mortgageein the account, Developer shall promptly undertake and a title company or agent approved by Mortgagee complete the Restoration in overseeing the disbursement of such insurance proceeds), and the Improvements shall be restored or rebuilt so as to be of at least equal value and substantially the same character as prior to such damage or destructionaccordance with this Article.
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Use of Insurance Proceeds. Mortgagee shall make the net insurance proceeds received by it (after reimbursement of Mortgagee’s 's reasonable out-of pocket costs of collecting and disbursing the same) available to Mortgagor to pay the cost of restoration, repair and rebuilding of the Mortgaged Property, subject to all of the following conditions precedent:
(a) There shall be no Event of Default in existence at the time of any disbursement of the insurance proceeds;
(b) Mortgagee shall have determined, in its reasonable discretion, that the cost of restoration, repair and rebuilding is and will be equal to or less than the amount of insurance proceeds and other funds deposited by Mortgagor with Mortgagee for restoration and repair of the Mortgaged PropertyMortgagee;
(c) Mortgagee shall have determined, in its reasonable discretion, that the restoration, repair and rebuilding can be completed in accordance with plans and specifications approved by Mortgagee (such approval not to be unreasonably withheld), and in accordance with applicable laws, codes, regulations codes and ordinances;
(d) All funds shall be disbursed, at Mortgagee’s 's option, in accordance with Mortgagee’s 's customary disbursement procedures for construction loans;; and
(e) The Casualty results in damage of $1,000,000.00 250,000.00 or less; and
(f) The restoration, repair and rebuilding of the Mortgaged Property can be completed within nine (9) months following the date of the Casualty, or such additional period of time as Mortgagee, in its reasonable discretion, shall permit. If any of these conditions shall not be satisfied, then Mortgagee shall have the right to either use the insurance proceeds to prepay the Obligations or make such proceeds available for restoration, repair and rebuilding of the Mortgaged PropertyObligations. If any insurance proceeds shall remain after completion of the restoration, repair and rebuilding of the Mortgaged Property, they shall be disbursed to Mortgagor, or the Person legally entitled thereto, or at the Mortgagee’s 's discretion, used to prepay the Obligations. In the event such insurance proceeds are made available for restoration and repair by the Mortgagee, Mortgagor shall pay all costs incurred by Mortgagee in connection with the application of such insurance proceeds (including but not limited to reasonable costs incurred by Mortgagee, and a title company or agent approved by Mortgagee in overseeing the disbursement of such insurance proceeds), and the Improvements shall be restored or rebuilt so as to be of at least equal value and substantially the same character as prior to such damage or destruction.
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Use of Insurance Proceeds. Mortgagee (a) All proceeds of casualty insurance on the Development shall make the net insurance proceeds received by it (after reimbursement of Mortgagee’s reasonable out-of pocket costs of collecting and disbursing the same) be made available to Mortgagor to pay for the cost of restoration, restoration and repair and rebuilding if any part of the Mortgaged Property, subject Development is damaged or destroyed in whole or in part by fire or other casualty. All work required to all of be performed in connection with such restoration and repair is hereinafter called the following conditions precedent:
(a) There shall be no Event of Default in existence at the time of any disbursement of the "Repair Work." All such insurance proceeds;
(b) Mortgagee shall have determined, in its reasonable discretion, that less the cost of restorationcollection, repair and rebuilding is and will shall be equal to or less than the amount of insurance proceeds and other funds deposited by Mortgagor with Mortgagee for restoration and repair of the Mortgaged Property;
(c) Mortgagee shall have determined, in its reasonable discretion, that the restoration, repair and rebuilding can be completed in accordance with plans and specifications approved by Mortgagee (such approval not paid into a trust account to be unreasonably withheld), created by an independent third party (the "Insurance Trustee") to be chosen by Tenant and in accordance with applicable laws, codes, regulations and ordinances;
Landlord within ten (d10) All funds shall be disbursed, at Mortgagee’s option, in accordance with Mortgagee’s customary disbursement procedures for construction loans;
(e) The Casualty results in damage days of $1,000,000.00 or less; and
(f) The restoration, repair and rebuilding of when the Mortgaged Property can be completed within nine (9) months following the date of the Casualty, or such additional period of time as Mortgagee, in its reasonable discretion, shall permit. If any of these conditions shall not be satisfied, then Mortgagee shall have the right to either use the insurance proceeds to prepay the Obligations or make such proceeds available for restoration, repair and rebuilding of the Mortgaged Property. If any insurance proceeds shall remain after completion of the restoration, repair and rebuilding of the Mortgaged Property, they shall be disbursed to Mortgagor, or the Person legally entitled thereto, or at the Mortgagee’s discretion, used to prepay the Obligations. In the event such insurance proceeds are made available (and approved by each Leasehold Mortgagee), which shall be located in the City. If Tenant or Landlord for restoration and repair by whatever reason, cannot or will not participate in the selection of the Insurance Trustee, then the other party (with approval of each Leasehold Mortgagee) shall select the Insurance Trustee. Tenant shall name the Insurance Trustee appointed pursuant to this Section 12.2 as the sole loss payee on Tenant's casualty insurance. If those parties who participate in the selection process cannot agree on the selection of the Insurance Trustee, Mortgagor either Landlord, Tenant or any Leasehold Mortgagee may apply to the Civil District Court for the Parish of Orleans, State of Louisiana for the appointment of a national bank located in the City as the Insurance Trustee. The Insurance Trustee shall pay all costs incurred by Mortgagee in connection with hold the application of such insurance proceeds (including but not limited in trust to reasonable costs incurred by Mortgageebe disbursed in stages to pay for the cost of the Repair Work, as hereafter provided. The Insurance Trustee shall deposit the insurance proceeds in an interest bearing account and a title company or agent approved by Mortgagee in overseeing any after-tax interest earned thereon shall be added to the disbursement of such insurance proceeds). If the insurance proceeds are insufficient to pay for the Repair Work, and Tenant shall, nevertheless, complete the Improvements shall be restored or rebuilt so as to be of at least equal value and substantially Repair Work and, after the same character as prior to such damage or destruction.funds in the trust account have been exhausted, pay for it in full using its own 125
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Sources: Lease Agreement (JCC Holding Co)