Common use of Minor Casualty or Condemnation Clause in Contracts

Minor Casualty or Condemnation. If a Casualty or Condemnation has occurred to the Property, Borrower’s and Operating Company’s right, title and interest in and to all Proceeds are, except as otherwise herein provided, hereby assigned to Agent and all Net Proceeds shall, except as otherwise herein provided, be paid to Agent. Borrower shall, in good faith and in a commercially reasonable manner, file and prosecute or cause Operating Company to file an prosecute the adjustment, compromise or settlement of any claim for Proceeds and, subject to Borrower’s right to receive the direct payment of any Net Proceeds as herein provided, will cause and shall cause Operating Company to cause the same to be paid directly to Agent to be held and applied in accordance with the provisions of this Agreement. Except upon the occurrence and during the continuance of a Monetary Default or an Event of Default or during a Trigger Period, Borrower may settle any insurance claim with respect to Net Proceeds which do not exceed the Restoration Threshold. Whether or not a Monetary Default or an Event of Default or a Trigger Period shall have occurred and be continuing, Agent shall have the right to approve, such approval not to be unreasonably withheld, any settlement which would in Agent’s reasonable judgment result in Net Proceeds which exceed the Restoration Threshold and Borrower shall and shall cause Operating Company to deliver or cause to be delivered to Agent all instruments reasonably requested by Agent to permit such approval. Borrower shall pay all reasonable out-of-pocket costs, fees and expenses incurred by Agent on behalf of Lenders (including all reasonable attorneys’ fees and expenses, the reasonable fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration), and interest thereon at the Default Rate to the extent not paid within fifteen (15) Business Days after delivery of a request for reimbursement by Agent, accompanied by reasonable back-up documentation, in connection with the settlement of any claim for Proceeds and the seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions. If any Proceeds are received by Borrower or Operating Company and may be retained by Borrower or Operating Company pursuant to this Section 5.3.1, such Proceeds shall, until the completion of the related Work, be held in trust for Agent, subject to the rights of parties benefited by Article 3A of the New York Lien Law (and Borrower shall cause Operating Company to hold same in trust for Agent) for the ratable benefit of Lenders and shall be segregated from other funds of Borrower or Operating Company, as applicable, to be used to pay for the cost of the Restoration in accordance with the terms hereof, and to the extent such Proceeds exceed the Restoration Threshold, such Proceeds shall be forthwith paid directly to and held by Agent to be applied or disbursed in accordance with this Article V. If a Monetary Default or an Event of Default shall have occurred and be continuing, or if Borrower or Operating Company fails to file any insurance claim for a period of fifteen (15) Business Days, or to prosecute same with commercially reasonable diligence following Borrower’s receipt of written notice to do so from Agent, Borrower hereby irrevocably empowers Agent, in the name of Borrower as its true and lawful attorney-in-fact, to file and prosecute such claim (including settlement thereof) with counsel satisfactory to Agent and to collect and to make receipt for any such payment, all at Borrower’s expense (including payment of interest at the Default Rate for any amounts advanced by Agent pursuant to this sentence). Notwithstanding anything to the contrary set forth in this Agreement, but excluding all situations requiring prepayment of the Note, to the extent any Proceeds (either singly or when aggregated with all other then unapplied Proceeds with respect to the Property) do not exceed the Restoration Threshold, such Proceeds are to be paid directly to Borrower to be applied to restoration of the Property in accordance with the terms hereof. If a Casualty or Condemnation has occurred to the Property and the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, and provided no Monetary Default or Event of Default shall have occurred and remain uncured, the Net Proceeds, if received by Agent, will be disbursed by Agent to Borrower. As soon as reasonably practicable after receipt of the Net Proceeds (but in no event later than sixty (60) days after such Casualty or Condemnation, whichever the case may be, occurs) Borrower shall commence and satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.

Minor Casualty or Condemnation. If a Casualty or Condemnation has occurred to the Property, Borrower’s and Operating Company’s right, title and interest in and to all Proceeds are, except as otherwise herein provided, hereby assigned by Borrower to Agent Lender and all Net Proceeds shall, except as otherwise herein provided, be paid to AgentLender. Borrower shall, in good faith and in a commercially reasonable manner, file and prosecute or cause Operating Company to file an prosecute the adjustment, compromise or settlement of any claim for Proceeds and, subject to Borrower’s right to receive the direct payment of any Net Proceeds as herein provided, will cause and shall cause Operating Company to cause the same to be paid directly to Agent Lender to be held and applied in accordance with the provisions of this Agreement. Except upon the occurrence and during the continuance of a Monetary Default or an Event of Default or during a Trigger PeriodDefault, Borrower may settle any insurance claim with respect to Net Proceeds which do not exceed One Million and 00/100 Dollars ($1,000,000.00) (the “Restoration Threshold”). Whether or not a Monetary Default or an Event of Default or a Trigger Period shall have occurred and be continuing, Agent Lender shall have the right to approve, such approval not to be unreasonably withheld, any settlement which would in AgentLender’s reasonable judgment result in Net Proceeds which exceed the Restoration Threshold and Borrower shall and shall cause Operating Company to deliver or cause to be delivered to Agent Lender all instruments reasonably requested by Agent Lender to permit such approval. Borrower shall pay all reasonable out-of-pocket costs, fees and expenses incurred by Agent Lender on behalf of Lenders (including all reasonable attorneys’ fees and expenses, the reasonable fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration), and interest thereon at the Default Rate to the extent not paid within fifteen (15) Business Days after delivery of a request for reimbursement by AgentLender, accompanied by reasonable back-up documentation, in connection with the settlement of any claim for Proceeds and the seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions. If any Proceeds are 109 received by Borrower or Operating Company and may be retained by Borrower or Operating Company pursuant to this Section 5.3.16.2, such Proceeds shall, until the completion of the related Work, be held in trust for Agent, subject to the rights of parties benefited by Article 3A of the New York Lien Law (and Borrower shall cause Operating Company to hold same in trust for Agent) Lender for the ratable benefit of Lenders and shall be segregated from other funds of Borrower or Operating Company, as applicable, to be used to pay for the cost of the Restoration in accordance with the terms hereof, and to the extent such Proceeds exceed the Restoration Threshold, such Proceeds shall be forthwith paid directly to and held by Agent Lender to be applied or disbursed in accordance with this Article V. VI. If a Monetary Default or an Event of Default shall have occurred and be continuing, or if Borrower or Operating Company fails to file any insurance claim for a period of fifteen (15) Business Days, or to prosecute same with commercially reasonable diligence following Borrower’s receipt of written notice to do so from AgentLender, Borrower hereby irrevocably empowers AgentLender, in the name of Borrower as its true and lawful attorney-in-fact, to file and prosecute such claim (including settlement thereof) with counsel satisfactory to Agent Lender and to collect and to make receipt for any such payment, all at Borrower’s expense (including payment of interest at the Default Rate for any amounts advanced by Agent Lender pursuant to this sentence). Notwithstanding anything to the contrary set forth in this Agreement, but excluding all situations requiring prepayment of the Note, to the extent any Proceeds (either singly or when aggregated with all other then unapplied Proceeds with respect to the Property) do not exceed the Restoration Threshold, such Proceeds are to be paid directly to Borrower to be applied to restoration of the Property in accordance with the terms hereof. If a Casualty or Condemnation has occurred to the Property and the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, and provided no Monetary Default or Event of Default shall have occurred and remain uncured, the Net Proceeds, if received by Agent, will be disbursed by Agent to Borrower. As soon as reasonably practicable after receipt of the Net Proceeds (but in no event later than sixty (60) days after such Casualty or Condemnation, whichever the case may be, occurs) Borrower shall commence and satisfactorily complete with due diligence diligence: (x) the Completion of the Improvements in accordance with the terms of this Agreement, if such Casualty or Condemnation occurs prior to the Completion of the Improvements; of (y) the Restoration in accordance with the terms of this Agreement, if such Casualty or Condemnation occurs after the Completion of the Improvements.

Minor Casualty or Condemnation. If a Casualty or Condemnation has occurred to the Property, Borrower’s and Operating Company’s right, title and interest in and to all Proceeds are, except as otherwise herein provided, hereby assigned to Agent and all Net Proceeds shall, except as otherwise herein provided, be paid to Agent. Borrower shall, in good faith and in a commercially reasonable manner, file and prosecute or cause Operating Company to file an prosecute the adjustment, compromise or settlement of any claim for Proceeds and, subject to Borrower’s right to receive the direct payment of any Net Proceeds as herein provided, will cause and shall cause Operating Company to cause the same to be paid directly to Agent to be held and applied in accordance with the provisions of this Agreement. Except upon the occurrence and during the continuance of a Monetary Default or an Event of Default or during a Trigger Period, Borrower may settle any insurance claim with respect to Net Proceeds which do not exceed the Restoration Threshold. Whether or not a Monetary Default or an Event of Default or a Trigger Period shall have occurred and be continuing, Agent shall have the right to approve, such approval not to be unreasonably withheld, any settlement which would in Agent’s reasonable judgment result in Net Proceeds which exceed the Restoration Threshold and Borrower shall and shall cause Operating Company to deliver or cause to be delivered to Agent all instruments reasonably requested by Agent to permit such approval. Borrower shall pay all reasonable out-of-pocket costs, fees and expenses incurred by Agent on behalf of Lenders (including all reasonable attorneys’ fees and expenses, the reasonable fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration), and interest thereon at the Default Rate to the extent not paid within fifteen (15) Business Days after delivery of a request for reimbursement by Agent, accompanied by reasonable back-up documentation, in connection with the settlement of any claim for Proceeds and the seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions. If any Proceeds are received by Borrower or Operating Company and may be retained by Borrower or Operating Company pursuant to this Section 5.3.1, such Proceeds shall, until the completion of the related Work, be held in trust for Agent, subject to the rights of parties benefited by Article 3A of the New York Lien Law (and Borrower shall cause Operating Company to hold same in trust for Agent) for the ratable benefit of Lenders and shall be segregated from other funds of Borrower or Operating Company, as applicable, to be used to pay for the cost of the Restoration in accordance with the terms hereof, and to the extent such Proceeds exceed the Restoration Threshold, such Proceeds shall be forthwith paid directly to and held by Agent to be applied or disbursed in accordance with this Article V. If a Monetary Default or an Event of Default shall have occurred and be continuing, or if Borrower or Operating Company fails to file any insurance claim for a period of fifteen (15) Business Days, or to prosecute same with commercially reasonable diligence following Borrower’s receipt of written notice to do so from Agent, Borrower hereby irrevocably empowers Agent, in the name of Borrower as its true and lawful attorney-in-fact, to file and prosecute such claim (including settlement thereof) with counsel satisfactory to Agent and to collect and to make receipt for any such payment, all at Borrower’s expense (including payment of interest at the Default Rate for any amounts advanced by Agent pursuant to this sentence). Notwithstanding anything to the contrary set forth in this Agreement, but excluding all situations requiring prepayment of the Note, to the extent any Proceeds (either singly or when aggregated with all other then unapplied Proceeds with respect to the Property) do not exceed the Restoration Threshold, such Proceeds are to be paid directly to Borrower to be applied to restoration of the Property in accordance with the terms hereof. If a Casualty or Condemnation has occurred to the Individual Property and the Net Proceeds shall be less than the Restoration Threshold for such Individual Property and the costs of completing the Restoration shall be less than the Restoration ThresholdThreshold for such Individual Property, and provided no Monetary Default or Event of Default shall the conditions set forth in Section 5.3.2(a)(i) through (x) below have occurred and remain uncuredbeen met, the Net Proceeds, if received by Agent, Proceeds will be disbursed by Agent Lender to Borrower. As soon as reasonably practicable Promptly after receipt of the Net Proceeds (but in no event later than sixty (60) days after such Casualty or CondemnationProceeds, whichever the case may be, occurs) Borrower shall commence and satisfactorily complete with due diligence the Restoration with respect to such Individual Property in accordance with the terms of this Agreement. If any Net Proceeds are received by Borrower and may be retained by Borrower pursuant to the terms hereof, such Net Proceeds shall, until completion of the Restoration of the applicable Individual Property, be held in trust for Lender and shall be segregated from other funds of Borrower to be used to pay for the cost of Restoration of the applicable Individual Property in accordance with the terms hereof. Notwithstanding the foregoing or anything to the contrary contained herein, in the event that, in accordance with the applicable terms and conditions hereof, the Condemnation Net Proceeds are required to be applied to the principal amount of the Debt and the amount of the Condemnation Net Proceeds applied to the principal amount of the Debt in connection therewith are insufficient under REMIC Requirements because such Condemnation Net Proceeds (or a portion thereof) are paid to or held by a Person other than Lender, Borrower shall, within five (5) days of demand by Lender, prepay the principal amount of the Debt in an amount equal to such insufficiency pursuant to such REMIC Requirements plus the amount of any interest that would have accrued on such amounts through the next Monthly Payment Date (such payment, the “Condemnation Payment”).

Minor Casualty or Condemnation. If a Casualty or Condemnation has occurred to the Propertyoccurred, Borrower’s and Operating Company’s right, title and interest in and to all Casualty Proceeds are, except as otherwise herein provided, hereby assigned to Agent Lender and all Net Casualty Proceeds shall, except as otherwise herein provided, be paid to AgentLender. Borrower shall, in good faith and in a commercially reasonable manner, file and prosecute or cause Operating Company to file an prosecute the adjustment, compromise or settlement of any claim for Casualty Proceeds and, subject to Borrower’s right to receive the direct payment of any Net Casualty Proceeds as herein provided, will cause and shall cause Operating Company to cause the same to be paid directly to Agent Lender to be held and applied in accordance with the provisions of this Agreement. Except upon the occurrence and during the continuance of a Monetary Default or an Event of Default or during a Trigger PeriodDefault, Borrower may settle any insurance claim with respect to Net Casualty Proceeds which do not exceed the Restoration Threshold. Whether or not a Monetary Default or an Event of Default or a Trigger Period shall have occurred and be continuing, Agent Lender shall have the right to approve, such approval not to be unreasonably withheld, conditioned or delayed any settlement which would in AgentLender’s reasonable judgment result in Net Casualty Proceeds which exceed the Restoration Threshold Threshold, and Borrower shall and shall cause Operating Company to deliver or cause to be delivered to Agent Lender all instruments reasonably requested by Agent Lender to permit such approval. Borrower shall pay all reasonable out-of-pocket costs, fees and expenses reasonably incurred by Agent on behalf of Lenders Lender (including including, without limitation, all reasonable attorneys’ fees and expenses, the reasonable fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration), and interest thereon at the Default Rate to the extent not paid within fifteen twenty (1520) Business Days after delivery of a request for reimbursement by AgentLender, accompanied by reasonable back-up documentation, in connection with the settlement of any claim for Casualty Proceeds and the seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions. If any Casualty Proceeds are received by Borrower or Operating Company and may be retained by Borrower or Operating Company pursuant to this Section 5.3.18.3(a), such Casualty Proceeds shall, until the completion of the related WorkRestoration, be held in trust for Agent, subject to the rights of parties benefited by Article 3A of the New York Lien Law (and Borrower shall cause Operating Company to hold same in trust for Agent) for the ratable benefit of Lenders Lender and shall be segregated from other funds of Borrower or Operating Company, as applicable, to be and used to pay for the cost of the Restoration in accordance with the terms hereof, and to the extent such Casualty Proceeds exceed the Restoration Threshold, such Casualty Proceeds shall be forthwith paid directly to and held by Agent Lender to be applied or disbursed in accordance with this Article V. Section 8.3. If a Monetary Default or an Event of Default shall have occurred and be continuing, or if Borrower or Operating Company fails to file any insurance claim for a period of fifteen thirty (1530) Business DaysDays after a Casualty, or to prosecute the same with commercially reasonable diligence following Borrower’s receipt of written notice to do so from AgentLender, Borrower hereby irrevocably empowers AgentLender, in the name of Borrower as its true and lawful attorney-in-fact, to file and prosecute such claim (including settlement thereof) with counsel satisfactory to Agent Lender and to collect and to make receipt for any such payment, all at Borrower’s expense (including payment of interest at the Default Rate for any amounts advanced by Agent Lender pursuant to this sentencesentence to the extent not paid within twenty (20) days). Notwithstanding anything to the contrary set forth in this Agreement, but excluding all situations requiring prepayment of the Note, to the extent any Casualty Proceeds (either singly or when aggregated with all other then unapplied Proceeds with respect to the PropertyCasualty Proceeds) do 54151.4 36 not exceed the Restoration Threshold, such Casualty Proceeds are to be paid directly to Borrower to be applied to restoration of the Property Restoration in accordance with the terms hereof. If a Casualty or Condemnation has occurred to the Property and the Net Casualty Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, and provided no Monetary Default or Event of Default shall have occurred and remain uncured, the Net Proceeds, if received by Agent, Casualty Proceeds will be disbursed pursuant to the preceding sentence, as directed by Agent to Borrower. As soon as reasonably practicable after receipt of the Net Casualty Proceeds (but in no event later than sixty (60) days after receipt of the Net Casualty Proceeds related to such Casualty or Condemnation, whichever the case may be, occurs) ), Borrower shall commence and satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.

Minor Casualty or Condemnation. If a Casualty or Condemnation has occurred to the Property, Borrower’s and Operating Company’s right, title and interest in and to all Proceeds are, except as otherwise herein provided, hereby assigned by Borrower to Agent Lender and all Net Proceeds shall, except as otherwise herein provided, be paid to AgentLender. Borrower shall, in good faith and in a commercially reasonable manner, file and prosecute or cause Operating Company to file an prosecute the adjustment, compromise or settlement of any claim for Proceeds and, subject to Borrower’s right to receive the direct payment of any Net Proceeds as herein provided, will cause and shall cause Operating Company to cause the same to be paid directly to Agent Lender to be held and applied in accordance with the provisions of this Agreement. Except upon the occurrence and during the continuance of a Monetary Default or an Event of Default or during a Trigger PeriodDefault, Borrower may settle any insurance claim with respect to Net Proceeds which do not exceed One Million and 00/100 Dollars ($1,000,000.00) (the “Restoration Threshold”). Whether or not a Monetary Default or an Event of Default or a Trigger Period shall have occurred and be continuing, Agent Lender shall have the right to approve, such approval not to be unreasonably withheld, any settlement which would in AgentLender’s reasonable judgment result in Net Proceeds which exceed the Restoration Threshold and Borrower shall and shall cause Operating Company to deliver or cause to be delivered to Agent Lender all instruments reasonably requested by Agent Lender to permit such approval. Borrower shall pay all reasonable out-of-pocket costs, fees and expenses incurred by Agent Lender on behalf of Lenders (including all reasonable attorneys’ fees and expenses, the reasonable fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration), and interest thereon at the Default Rate to the extent not paid within fifteen (15) Business Days after delivery of a request for reimbursement by AgentLender, accompanied by reasonable back-up documentation, in connection with the settlement of any claim for Proceeds and the seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions. If any Proceeds are received by Borrower or Operating Company and may be retained by Borrower or Operating Company pursuant to this Section 5.3.16.2, such Proceeds shall, until the completion of the related Work, be held in trust for Agent, subject to the rights of parties benefited by Article 3A of the New York Lien Law (and Borrower shall cause Operating Company to hold same in trust for Agent) Lender for the ratable benefit of Lenders and shall be segregated from other funds of Borrower or Operating Company, as applicable, to be used to pay for the cost of the Restoration in accordance with the terms hereof, and to the extent such Proceeds exceed the Restoration Threshold, such Proceeds shall be forthwith paid directly to and held by Agent Lender to be applied or disbursed in accordance with this Article V. VI. If a Monetary Default or an Event of Default shall have occurred and be continuing, or if Borrower or Operating Company fails to file any insurance claim for a period of fifteen (15) Business Days, or to prosecute same with commercially reasonable diligence following Borrower’s receipt of written notice to do so from AgentLender, Borrower hereby irrevocably empowers AgentLender, in the name of Borrower as its true and lawful attorney-in-fact, to file and prosecute such claim (including settlement thereof) with counsel satisfactory to Agent Lender and to collect and to make receipt for any such payment, all at Borrower’s expense (including payment of interest at the Default Rate for any amounts advanced by Agent Lender pursuant to this sentence). Notwithstanding anything to the contrary set forth in this Agreement, but excluding all situations requiring prepayment of the Note, to the extent any Proceeds (either singly or when aggregated with all other then unapplied Proceeds with respect to the Property) do not exceed the Restoration Threshold, such Proceeds are to be paid directly to Borrower to be applied to restoration of the Property in accordance with the terms hereof. If a Casualty or Condemnation has occurred to the Property and the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, and provided no Monetary Default or Event of Default shall have occurred and remain uncured, the Net Proceeds, if received by Agent, will be disbursed by Agent to Borrower. As soon as reasonably practicable after receipt of the Net Proceeds (but in no event later than sixty (60) days after such Casualty or Condemnation, whichever the case may be, occurs) Borrower shall commence and satisfactorily complete with due diligence diligence: (x) the Completion of the Improvements in accordance with the terms of this Agreement, if such Casualty or Condemnation occurs prior to the Completion of the Improvements; of (y) the Restoration in accordance with the terms of this Agreement, if such Casualty or Condemnation occurs after the Completion of the Improvements.

Minor Casualty or Condemnation. If a Casualty or Condemnation has occurred to the Property, Borrower’s and Operating Company’s right, title and interest in and to all Proceeds are, except as otherwise herein provided, hereby assigned by Borrower to Agent Lender and all Net Proceeds shall, except as otherwise herein provided, be paid to AgentLender. Borrower shall, in good faith and in a commercially reasonable manner, file and prosecute or cause Operating Company to file an prosecute the adjustment, compromise or settlement of any claim for Proceeds and, subject to Borrower’s right to receive the direct payment of any Net Proceeds as herein provided, will cause and shall cause Operating Company to cause the same to be paid directly to Agent Lender to be held and applied in accordance with the provisions of this Agreement. Except upon the occurrence and during the continuance of a Monetary Default or an Event of Default or during a Trigger PeriodDefault, Borrower may settle any insurance claim with respect to Net Proceeds which do not exceed One Million and 00/100 Dollars ($1,000,000.00) (the “Restoration Threshold”). Whether or not a Monetary Default or an Event of Default or a Trigger Period shall have occurred and be continuing, Agent Lender shall have the right to approve, such approval not to be unreasonably withheld, any settlement which would in AgentLender’s reasonable judgment result in Net Proceeds which exceed the Restoration Threshold and Borrower shall and shall cause Operating Company to deliver or cause to be delivered to Agent Lender all instruments reasonably requested by Agent Lender to permit such approval. Borrower shall pay all reasonable out-of-pocket costs, fees and expenses incurred by Agent Lender on behalf of Lenders (including all reasonable attorneys’ fees and expenses, the reasonable fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration), and interest thereon at the Default Rate to the extent not paid within fifteen (15) Business Days after delivery of a request for reimbursement by AgentLender, accompanied by reasonable back-up documentation, in connection with the settlement of any claim for Proceeds and the seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions. If any Proceeds are received by Borrower or Operating Company and may be retained by Borrower or Operating Company pursuant to this Section 5.3.16.2, such Proceeds shall, until the completion of the related Work, be held in trust for Agent, subject to the rights of parties benefited by Article 3A of the New York Lien Law (and Borrower shall cause Operating Company to hold same in trust for Agent) Lender for the ratable benefit of Lenders and shall be segregated from other funds of Borrower or Operating Company, as applicable, to be used to pay for the cost of the Restoration in accordance with the terms hereof, and to the extent such Proceeds exceed the Restoration Threshold, such Proceeds shall be forthwith paid directly to and held by Agent Lender to be applied or disbursed in accordance with this Article V. VI. If a Monetary Default or an Event of Default shall have occurred and be continuing, or if Borrower or Operating Company fails to file any insurance claim for a period of fifteen (15) Business Days, or to prosecute same with commercially reasonable diligence following Borrower’s receipt of written notice to do so from AgentLender, Borrower hereby irrevocably empowers AgentLender, in the name of Borrower as its true and lawful attorney-in-fact, to file and prosecute such claim (including settlement thereof) with counsel satisfactory to Agent Lender and to collect and to make receipt for any such payment, all at Borrower’s expense (including payment of interest at the Default Rate for any amounts advanced by Agent Lender pursuant to this sentence). Notwithstanding anything to the contrary set forth in this Agreement, but excluding all situations requiring prepayment of the Note, to the extent any Proceeds (either singly or when 119 aggregated with all other then unapplied Proceeds with respect to the Property) do not exceed the Restoration Threshold, such Proceeds are to be paid directly to Borrower to be applied to restoration of the Property in accordance with the terms hereof. If a Casualty or Condemnation has occurred to the Property and the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, and provided no Monetary Default or Event of Default shall have occurred and remain uncured, the Net Proceeds, if received by Agent, will be disbursed by Agent to Borrower. As soon as reasonably practicable after receipt of the Net Proceeds (but in no event later than sixty (60) days after such Casualty or Condemnation, whichever the case may be, occurs) Borrower shall commence and satisfactorily complete with due diligence diligence: (x) the Completion of the Improvements in accordance with the terms of this Agreement, if such Casualty or Condemnation occurs prior to the Completion of the Improvements; of (y) the Restoration in accordance with the terms of this Agreement, if such Casualty or Condemnation occurs after the Completion of the Improvements.

Minor Casualty or Condemnation. If a Casualty or Condemnation has occurred to the Property, Borrower’s and Operating Company’s right, title and interest in and to all Proceeds are, except as otherwise herein provided, hereby assigned by Borrower to Agent and all Net Proceeds shall, except as otherwise herein provided, be paid to Agent. Borrower shall, in good faith and in a commercially reasonable manner, file and prosecute or cause Operating Company to file an prosecute the adjustment, compromise or settlement of any claim for Proceeds and, subject to Borrower’s right to receive the direct payment of any Net Proceeds as herein provided, will cause and shall cause Operating Company to cause the same to be paid directly to Agent to be held and applied in accordance with the provisions of this Agreement. Except upon the occurrence and during the continuance of a Monetary Default or an Event of Default or during a Trigger PeriodDefault, Borrower may settle any insurance or condemnation claim with respect to Net Proceeds which do not exceed the Restoration Threshold. Whether or not a Monetary Default or an Event of Default or a Trigger Period shall have occurred and be continuing, Agent shall have the right to approve, such approval not to be unreasonably withheld, any settlement which would in Agent’s reasonable judgment result in Net Proceeds which exceed the Restoration Threshold and Borrower shall and shall cause Operating Company to deliver or cause to be delivered to Agent all instruments reasonably requested by Agent to permit such approval. Borrower shall pay all reasonable reasonable, actual, out-of-pocket costs, fees and expenses incurred by Agent on behalf of Lenders (including all reasonable attorneys’ fees and expenses, the reasonable fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration), and interest thereon at the Default Rate to the extent not paid within fifteen (15) Business Days after delivery of a request for reimbursement by Agent, accompanied by reasonable back-up documentation, in connection with the settlement of any claim for Proceeds and the seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions. If any Proceeds are received by Borrower or Operating Company and may be retained by Borrower or Operating Company pursuant to this Section 5.3.1, such Proceeds shall, until the completion of the related Work, be held in trust for Agent, subject to the rights of parties benefited by Article 3A of the New York Lien Law (and Borrower shall cause Operating Company to hold same in trust for Agent) Agent for the ratable Ratable benefit of Lenders and shall be segregated from other funds of Borrower or Operating Company, as applicable, to be used to pay for the cost of the Restoration in accordance with the terms hereof, and to the extent such Proceeds exceed the Restoration Threshold, such Proceeds shall be forthwith paid directly to and held by Agent to be applied or disbursed in accordance with this Article V. If a Monetary Default or an Event of Default shall have occurred and be continuing, or if Borrower or Operating Company fails to file any insurance claim for a period of fifteen (15) Business Days, or to prosecute same with commercially reasonable diligence following Borrower’s receipt of written notice to do so from Agent, Borrower hereby irrevocably empowers Agent, in the name of Borrower as its true and lawful attorney-in-fact, to file and prosecute such claim (including settlement thereof) with counsel satisfactory to Agent and to collect and to make receipt for any such payment, all at Borrower’s expense (including payment of interest at the Default Rate for any USActive 32926859.13 -77- amounts advanced by Agent pursuant to this sentence). Notwithstanding anything to the contrary set forth in this Agreement, but excluding all situations requiring prepayment of the Note, to the extent any Proceeds (either singly or when aggregated with all other then unapplied Proceeds with respect to the Property) do not exceed the Restoration Threshold, such Proceeds are to be paid directly to Borrower to be applied to restoration of the Property in accordance with the terms hereof. If a Casualty or Condemnation has occurred to the Property and the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, and provided no Monetary Default or Event of Default shall have occurred and remain uncured, the Net Proceeds, if received by Agent, Proceeds will be disbursed by Agent to Borrower. As soon as reasonably practicable after receipt of the Net Proceeds (but in no event later than sixty seventy-five (6075) days after such Casualty or Condemnation, whichever the case may be, occurs) Borrower shall commence the Restoration and shall satisfactorily complete with due diligence the Restoration within a reasonable period of time in accordance with the terms of this Agreement.

Minor Casualty or Condemnation. If a Casualty or Condemnation has occurred to the Property, Borrower’s and Operating Company’s right, title and interest in and to all Insurance Proceeds are, except as otherwise herein provided, hereby assigned by Borrower to Agent and all Net Proceeds shall, except as otherwise herein provided, be paid to Agent. Borrower shall, in good faith and in a commercially reasonable manner, file and prosecute or cause Operating Company to file an prosecute the adjustment, compromise or settlement of any claim for Insurance Proceeds and, subject to Borrower’s right to receive the direct payment of any Net Proceeds as herein provided, will cause and shall cause Operating Company to cause the same to be paid directly to Agent to be held and applied in accordance with the provisions of this Agreement. Except upon the occurrence and during the continuance of a Monetary Default or an Event of Default or during a Trigger PeriodDefault, Borrower may settle any insurance claim with respect to Net Proceeds which do not exceed $1,000,000.00 (the Restoration “Settlement Threshold”). Whether or not a Monetary Default or an Event of Default or a Trigger Period shall have occurred and be continuing, Agent shall have the right to approve, such approval not to be unreasonably withheld, participate in any settlement discussions and approve any settlement which would in Agent’s reasonable judgment result in Net Proceeds which exceed the Restoration Settlement Threshold and Borrower shall and shall cause Operating Company to deliver or cause to be delivered to Agent all instruments reasonably requested by Agent to permit such approval. Borrower shall pay all reasonable out-of-pocket costs, fees and expenses incurred by Agent on behalf of Lenders and Lender (including all reasonable attorneys’ fees and expenses, the reasonable fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration), and interest thereon at the Default Rate to the extent not paid within fifteen (15) Business Days after delivery of a request for reimbursement by Agent, accompanied by reasonable back-up documentation, in connection with the settlement of any claim for Insurance Proceeds and the seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions. If any Insurance Proceeds are received by Borrower or Operating Company and may be retained by Borrower or Operating Company pursuant to this Section 5.3.16.2, such Insurance Proceeds shall, until the completion of the related Workwork, be held in trust for Agent, subject to the rights of parties benefited by Article 3A of the New York Lien Law (and Borrower shall cause Operating Company to hold same in trust for Agent) for the ratable benefit of Lenders Agent and shall be segregated from other funds of Borrower or Operating Company, as applicable, to be used to pay for the cost of the Restoration in accordance with the terms hereof, and to the extent such Insurance Proceeds exceed the Restoration ThresholdThreshold (as defined below), such Insurance Proceeds shall be forthwith paid directly to and held by Agent to be applied or disbursed in accordance with this Article V. VI. If a Monetary Default or an Event of Default shall have occurred and be continuing, or if Borrower or Operating Company fails to file any insurance claim for a period of fifteen (15) Business Days, or to prosecute same with commercially reasonable diligence following Borrower’s receipt of written notice to do so from Agent, Borrower hereby irrevocably empowers Agent, in the name of Borrower as its true and lawful attorney-in-fact, to file and prosecute such claim (including settlement thereof) with counsel satisfactory to Agent and to collect and to make receipt for any such payment, all at Borrower’s expense (including payment of interest at the Default Rate for any amounts advanced by Agent pursuant to this sentence). Notwithstanding anything to the contrary set forth in this Agreement, but excluding all situations requiring prepayment of the Note, to the extent any Proceeds (either singly or when aggregated with all other then unapplied Proceeds with respect to the Property) do not exceed the Restoration Threshold, such Proceeds are to be paid directly to Borrower to be applied to restoration of the Property in accordance with the terms hereof. If a Casualty or Condemnation has occurred to the Property and the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, and provided no Monetary Default or Event of Default shall have occurred and remain uncured, the Net Proceeds, if received by Agent, will be disbursed by Agent to Borrower. As soon as reasonably practicable after receipt of the Net Proceeds (but in no event later than sixty (60) days after such Casualty or Condemnation, whichever the case may be, occurs) Borrower shall commence and satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.

Minor Casualty or Condemnation. If a Casualty or Condemnation has occurred to the Property, Borrower’s and Operating Company’s right, title and interest in and to all Proceeds are, except as otherwise herein provided, hereby assigned by Borrower to Agent and all Net Proceeds shall, except as otherwise herein provided, be paid to Agent. Borrower shall, in good faith and in a commercially reasonable manner, file and prosecute or cause Operating Company to file an prosecute the adjustment, compromise or settlement of any claim for Proceeds andand if the gross claim may exceed the Restoration Threshold, subject to Borrower’s right to receive the direct payment of any Net Proceeds as herein provided, will cause and shall cause Operating Company to cause the same to be paid directly to Agent to be held and applied in accordance with the provisions of this Agreement. Notwithstanding the foregoing, any insured claims in which the Net Proceeds are less than $2,500,000 shall be paid directly to Borrower so long as no Event of Default has occurred and is continuing. Except upon the occurrence and during the continuance of a Monetary Default or an Event of Default or during a Trigger PeriodDefault, Borrower may settle any insurance claim with respect to Net Proceeds which do not exceed the Restoration Threshold. Whether or not a Monetary Default or an Event of Default or a Trigger Period shall have occurred and be continuing, Agent shall have the right to approve, such approval not to be unreasonably withheld, participate in any settlement which would in Agent’s reasonable judgment result in Net Proceeds which exceed the Restoration Threshold and Borrower shall and shall cause Operating Company to deliver or cause to be delivered to Agent all instruments reasonably requested by Agent to permit such approvalparticipation. Borrower shall pay all reasonable out-of-pocket costs, fees and expenses incurred by Agent on behalf of Lenders (including all reasonable attorneys’ fees and expenses, the reasonable fees of insurance experts and adjusters and reasonable out-of-pocket costs incurred in any litigation or arbitration), and interest thereon at the Default Rate to the extent not paid within fifteen (15) Business Days after delivery of a request for reimbursement by Agent, accompanied by reasonable back-up documentation, in connection with the settlement of any claim for Proceeds and the seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions. If any Proceeds are received by Borrower or Operating Company and may be retained by Borrower or Operating Company pursuant to this Section 5.3.1, such Proceeds shall, until the completion of the related Work, be held in trust for Agent, subject to the rights of parties benefited by Article 3A of the New York Lien Law (and Borrower shall cause Operating Company to hold same in trust for Agent) Agent for the ratable Ratable benefit of Lenders and shall be segregated from other funds of Borrower or Operating Company, as applicable, to be used to pay for the cost of the Restoration and insured continuing expenses in accordance with the terms hereof, and to the extent such Proceeds exceed the Restoration Threshold, such Proceeds shall be forthwith paid directly to and held by Agent to be applied or disbursed in accordance with this Article V. If a Monetary Default or an Event of Default shall have occurred and be continuing, or if Borrower or Operating Company fails to file any insurance claim in accordance with the Policy requirements for a period of fifteen (15) Business Days, or to prosecute same with commercially reasonable diligence following Borrower’s receipt of written notice to do so from Agent, Borrower hereby irrevocably empowers Agent, in the name of Borrower as its true and lawful attorney-in-fact, to file and prosecute such claim (including settlement thereof) with counsel satisfactory to Agent and to collect and to make receipt for any such payment, all at Borrower’s expense (including payment of interest at the Default Rate for any amounts advanced by Agent pursuant to this sentence). Notwithstanding anything to the contrary set forth in this Agreement, but excluding all situations requiring prepayment of the Note, to the extent any Proceeds (either singly or when aggregated with all other then unapplied Proceeds with respect to the Property) do not exceed the Restoration Threshold, such Proceeds are to be paid directly to Borrower to be applied to restoration of the Property in accordance with the terms hereof. If a Casualty or Condemnation has occurred to the Property and the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, and provided no Monetary Default or Event of Default shall have occurred and remain uncured, the Net Proceeds, if received by Agent, Proceeds will be disbursed by Agent to Borrower. As Borrower shall (i) commence the Restoration in accordance with the terms of this Agreement as soon as reasonably practicable after receipt of the Net Proceeds (but in no event later than sixty one hundred twenty (60120) days after such Casualty or Condemnation, whichever the case may be, occurs) and (ii) Borrower shall commence and satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.

Minor Casualty or Condemnation. If a Casualty or Condemnation has occurred to the Property, Borrower’s and Operating Company’s right, title and interest in and to all Proceeds are, except as otherwise herein provided, hereby assigned by Borrower to Agent Lender and all Net Proceeds shall, except as otherwise herein provided, be paid to AgentLender. Borrower shall, in good faith and in a commercially reasonable manner, file and prosecute or cause Operating Company to file an prosecute the adjustment, compromise or settlement of any claim for Proceeds and, subject to Borrower’s right to receive the direct payment of any Net Proceeds as herein provided, will cause and shall cause Operating Company to cause the same to be paid directly to Agent Lender to be held and applied in accordance with the provisions of this Agreement. Except upon the occurrence and during the continuance of a Monetary Default or an Event of Default or during a Trigger PeriodDefault, Borrower may settle any insurance claim with respect to Net Proceeds which do not exceed One Million and 00/100 Dollars ($1,000,000.00) (the “Restoration Threshold”). Whether or not a Monetary Default or an Event of Default or a Trigger Period shall have occurred and be continuing, Agent Lender shall have the right to approve, such approval not to be unreasonably withheld, any settlement which would in AgentLender’s reasonable judgment result in Net Proceeds which exceed the Restoration Threshold and Borrower shall and shall cause Operating Company to deliver or cause to be delivered to Agent Lender all instruments reasonably requested by Agent Lender to permit such approval. Borrower shall pay all reasonable out-of-pocket costs, fees and expenses incurred by Agent Lender on behalf of Lenders (including all reasonable attorneys’ fees and expenses, the reasonable fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration), and interest thereon at the Default Rate to the extent not paid within fifteen (15) Business Days after delivery of a request for reimbursement by AgentLender, accompanied by reasonable back-up documentation, in connection with the settlement of any claim for Proceeds and the seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions. If any Proceeds are received by Borrower or Operating Company and may be retained by Borrower or Operating Company pursuant to this Section 5.3.16.2, such Proceeds shall, until the completion of the related Work, be held in trust for Agent, subject to the rights of parties benefited by Article 3A of the New York Lien Law (and Borrower shall cause Operating Company to hold same in trust for Agent) Lender for the ratable benefit of Lenders and shall be segregated from other funds of Borrower or Operating Company, as applicable, to be used to pay for the cost of the Restoration in accordance with the terms hereof, and to the extent such Proceeds exceed the Restoration Threshold, such Proceeds shall be forthwith paid directly to and held by Agent Lender to be applied or disbursed in accordance with this Article V. VI. If a Monetary Default or an Event of Default shall have occurred and be continuing, or if Borrower or Operating Company fails to file any insurance claim for a period of fifteen (15) Business Days, or to prosecute same with commercially reasonable diligence following Borrower’s receipt of written notice to do so from AgentLender, Borrower hereby irrevocably empowers AgentLender, in the name of Borrower as its true and lawful attorney-in-fact, to file and prosecute such claim (including settlement thereof) with counsel satisfactory to Agent Lender and to collect and to make receipt for any such payment, all at Borrower’s expense (including payment of interest at the Default Rate for any amounts advanced by Agent Lender pursuant to this sentence). Notwithstanding anything to the contrary set forth in this Agreement, but excluding all situations requiring prepayment of the Note, to the extent any Proceeds (either singly or when aggregated with all other then unapplied Proceeds with respect to the Property) do not exceed the Restoration Threshold, such Proceeds are to be paid directly to Borrower to be applied to restoration of the Property in accordance with the terms hereof. If a Casualty or Condemnation has occurred to the Property and the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, and provided no Monetary Default or Event of Default shall have occurred and remain uncured, the Net Proceeds, if received by Agent, will be disbursed by Agent to Borrower. As soon as reasonably practicable after receipt of the Net Proceeds (but in no event later than sixty (60) days after such Casualty or Condemnation, whichever the case may be, occurs) Borrower shall commence and satisfactorily complete with due diligence diligence: (x) the Completion of the Improvements in accordance with the terms of this Agreement, if such Casualty or Condemnation occurs prior to the Completion of the Improvements; of (y) the Restoration in accordance with the terms of this Agreement., if such Casualty or Condemnation occurs after the Completion of the Improvements. 109