Common use of Fresno Clause in Contracts

Fresno. The Company and Sponsors shall cooperate, and use commercially reasonable efforts to collect, as promptly as possible following the date hereof, the balance of the insurance proceeds claimed by ACT Fresno in connection with the fire that occurred at its Construction Properties in 2003 (the “Fresno Fire”). Subject to the provisions of the next immediate sentence, the amount of any such insurance proceeds collected by the Company Entities or ACT Fresno (the “Collected Insurance Proceeds”) may be used by the Company to achieve Completion, obtain any Governmental Permits and pay for Construction Delay Costs with respect to the Construction Property owned by ACT Temple (but not with respect to any of the other Construction Properties) (the “Temple Completion Costs”) but only to the extent the Temple Completion Costs previously have not been satisfied utilizing the Completion Funds pursuant to Section 1.4(a). Upon receipt by the Company Entities or ACT Fresno of any such insurance proceeds, (i) if the Temple Completion Costs shall have been satisfied, then any Collected Insurance Proceeds received by the Company Entities or ACT Fresno shall be held by them in trust for NEWCO and shall be promptly remitted to NEWCO; (ii) if the Temple Completion Costs shall have not been satisfied and there does not remain any Completion Funds not previously delivered to the Company Entities, then any Collected Insurance Proceeds received by the Company Entities or ACT Fresno shall be deemed Completion Funds and may be used at the Company’s discretion to satisfy the Temple Completion Costs; and (iii) if the Temple Completion Costs shall have not been satisfied and there remains Completion Funds not previously delivered to the Company Entities, then any Collected Insurance Proceeds received by the Company Entities or ACT Fresno shall be delivered to Escrow Agent to be held as and part of the Escrowed Funds; provided, however, that disbursements to the Company from the Escrowed Funds of any Collected Insurance Proceeds may be used only to satisfy Temple Construction Costs. Upon the written request of Sponsors, and at no cost to the Company Entities and/or ACT Fresno, the Company Entities and ACT Fresno shall, subject to the continuing directions of the Sponsors, commence litigation or such other legal proceedings as the Sponsors reasonably shall request and against such persons and entities as the Sponsors shall direct (the “Insurance Litigation”) to seek to recover insurance proceeds claimed by ACT Fresno in connection with the Fresno Fire. The Company Entities and ACT Fresno shall cooperate with the Sponsors in prosecuting any Insurance Litigation; provided, however, that neither the Company Entities nor ACT Fresno shall be obligated to incur any costs or expenses in connection with such cooperation regarding any Insurance Litigation. Further, the Company Entities and ACT Fresno may not agree to settle or otherwise compromise any claims against the insurer for all or any portion of such insurance proceeds without the prior written consent thereto by Sponsors. At the request of Sponsors at any time following the satisfaction of the Temple Completion Costs, the Company Entities and ACT Fresno shall either (i) assign their claim for all remaining insurance proceeds to NEWCO, or (ii) seek to enforce such claim against the insurer upon receipt by the Company Entities or ACT Fresno of appropriate indemnifications from Sponsors for all associated costs of such enforcement actions, with any insurance proceeds collected through such action to be remitted to NEWCO.