Common use of Contingency Reserve Clause in Contracts

Contingency Reserve. (a) Following the satisfaction of the Initial Advance Conditions, and subject to the prior approval of Lender in its sole discretion, Borrower may revise the Project Loan Budget to move amounts available under any Line Item that are designated to “Contingency” to other Line Items in the Project Loan Budget. In no event may the Contingency Line Item of the Building Loan Budget be reallocated to any Line Item in the Project Loan Budget. Provided no Event of Default exists and with Lender’s consent (which shall not be unreasonably withheld), after Completion of the Improvements, Borrower may draw amounts available under the Contingency Line Item of the Project Loan Budget to fund Shortfalls in monthly interest due, which amounts shall be deposited in the Interest Reserve. Such drawing shall be in addition to any Interest Reserve Line Item advanced under the Project Loan pursuant to Section 2.14.10 hereof. (b) Following the occurrence of Final Completion, Lender shall reasonably cooperate with Borrower to amend the Project Loan Budget, Building Loan Budget, Project Loan Documents and Building Loan Documents such that: (x) the Building Loan Budget is amended to remove the amounts then available under the Building Loan Budget either in the contingency Line Item or as cost savings from other Line Items (the “Contingency Excess”) and the Building Loan Amount is reduced by the Contingency Excess; and (y) the contingency line item of the Project Loan Budget and the Project Loan Amount are increased by the Contingency Excess. Borrower and Lender shall execute and deliver such documents, certificates and instruments as may be reasonably required to effect the above described re-allocation, including, without limitation, the filing of an amended Section 22 Affidavit and the modification of the Project Loan Documents and Building Loan Documents to reflect the respective changes in the Project Loan Amount and the Building Loan Amount and Borrower shall obtain such other evidence as Lender may reasonably request to confirm that none of the foregoing shall adversely impact the validity or priority of its security interests in the Property or otherwise adversely impact its rights and remedies under the Loan Documents including, without limitation, appropriate endorsements to the title insurance policy. Borrower shall pay any and all title insurance, recording and other charges and all reasonable costs and expenses (including legal fees) incurred by Lender in connection with the foregoing.

Contingency Reserve. (a) Following the satisfaction Provided that all of the Initial Advance Conditions, and subject conditions to the prior approval of Lender a Disbursement to Borrower set forth herein have been satisfied (or waived in its sole discretionwriting by Lender), Borrower may revise the Project Loan Budget from time to move amounts available under any Line Item time request that are designated to “Contingency” to other Line Items funds in the Project Loan Budget. In no event may Contingency Reserve be disbursed to Borrower to fund costs for which Borrower would be entitled to request a reallocation from the Contingency Line Item of pursuant to Section 3.9. A request for a disbursement from the Building Loan Budget Contingency Reserve shall be reallocated to any Line Item set forth in the Project Loan Budget. Provided no Event of Default exists Draw Request and with subject to Lender’s consent (which shall written approval, not to be unreasonably withheld), after Completion of the Improvementsconditioned or delayed and which approval shall be granted provided that, Borrower may draw in Lender’s reasonable judgment, there are sufficient amounts available under remaining in the Contingency Line Item and Contingency Reserve to protect against cost overruns, other unanticipated events or circumstances and to cover the costs of ownership, operating, leasing, maintenance and repair of the Project Loan Budget to fund Shortfalls in monthly interest due, which amounts shall be deposited in Mortgaged Property following Completion for the Interest Reserve. Such drawing shall be in addition to any Interest Reserve Line Item advanced under remainder of the Project Loan pursuant to Section 2.14.10 hereofTerm. (b) Following Funds in the Contingency Reserve shall be held by Lender in an interest bearing account established by and under the sole control of Lender at a financial institution selected by Lender (subject to Borrower’s approval, not to be unreasonably withheld, conditioned or delayed), which financial institution must meet the Rating Criteria. All interest earned on the Contingency Reserve shall be allocated to Borrower for income tax purposes, but it shall be added to and disbursed as a part of the Contingency Reserve. Borrower hereby assigns and grants Lender a security interest in funds held in the Contingency Reserve as security for payment and performance of Borrower's obligations under the Loan Documents. All funds held in the Contingency Reserve shall be additional security for the Loan, and upon the occurrence of Final Completionan Event of Default, Lender shall reasonably cooperate with Borrower be authorized to amend the Project Loan Budget, Building Loan Budget, Project Loan Documents and Building Loan Documents apply such that: (x) the Building Loan Budget is amended funds to remove the amounts then available under the Building Loan Budget either in the contingency Line Item or as cost savings from other Line Items (the “Contingency Excess”) and the Building Loan Amount is reduced by the Contingency Excess; and (y) the contingency line item of the Project Loan Budget and the Project Loan Amount are increased by the Contingency Excess. Borrower and Lender shall execute and deliver such documents, certificates and instruments as may be reasonably required to effect the above described re-allocation, including, without limitation, the filing of an amended Section 22 Affidavit and the modification of the Project Loan Documents and Building Loan Documents to reflect the respective changes in the Project Loan Amount and the Building Loan Amount and Borrower shall obtain such other evidence as Lender may reasonably request to confirm that none of the foregoing shall adversely impact the validity or priority of its security interests in the Property or otherwise adversely impact its rights and remedies Borrower's obligations under the Loan Documents includingin such order and priority as Lender may elect in its sole discretion. Lender shall have a perfected first priority security interest in the Contingency Reserve. The balance (if any) remaining in the Contingency Reserve after the Loan is paid in full shall be (i) if the Mezzanine Loan is then outstanding, without limitationpaid to Mezzanine Administrative Agent for the benefit of Mezzanine Lender for application in accordance ​ ​ with the Mezzanine Loan Documents; provided, appropriate endorsements however, that the failure to the title insurance policy. Borrower shall pay any and all title insurance, recording and other charges and all reasonable costs and expenses (including legal fees) incurred remit such balance actually received by Lender or actually held by Lender to Mezzanine Administrative Agent for the benefit of Mezzanine Lender or any failure of Mezzanine Administrative Agent to apply such funds in connection accordance with the foregoingMezzanine Loan Documents shall be without recourse or liability to Lender, Administrative Agent or any other Lender Party (other than as a result of their respective intentional willful misconduct) and Lender shall have no obligation to determine whether or not the Mezzanine Loan is outstanding, and (ii) if the Mezzanine Loan is no longer outstanding, returned to Borrower.” ​ (ee) Section 3.6 is hereby deleted in its entirety and replaced with the following: ​

Contingency Reserve. (a) Following the satisfaction of the Initial Advance Conditions, Subject to Section 7.1.10 hereof and subject to the prior approval approval, which shall not be unreasonably withheld or delayed, of Lender the Agent in its sole discretionrespect of individual reallocations of greater than five percent (5%) of a given line item and up to an aggregate reallocation, taking into account all prior reallocations, of ten percent (10%) of such line item as set forth in the Approved Construction Budget on the date hereof, the Borrower may revise the Project Loan Approved Construction Budget from time to time to move amounts available under any Line Item that are designated to the Hard Costs budget line denominated “Contingency” to other Line Items Hard Costs budget lines only, and/or to move amounts available under the Soft Costs budget line denominated “Contingency” to other Soft Costs budget lines or to any Hard Costs budget lines by providing to Agent a revision to the Approved Construction Budget indicating all such changes; provided, however, that the Agent’s prior consent shall be required for any (x) disbursement from the “Soft Costs Contingency” in excess of $250,000 (individually or in the Project Loan Budget. In no event may the Contingency Line Item of the Building Loan Budget be reallocated aggregate, taking into account prior disbursements with respect to any Line Item given line item to which Contingency is being allocated or reallocated) or (y) disbursement from the “Hard Costs Contingency” in excess of $1,000,000 (individually or in the Project Loan Budgetaggregate, taking into account prior disbursements with respect to any given line item to which Contingency is being allocated or reallocated). Notwithstanding the foregoing, Borrower shall also be entitled to request disbursements from the Restricted Securities Account for the same purposes for which the Construction Contingency may be used, on the same terms, conditions and restrictions as set forth in Sections 2.1.2, 2.1.3, 2.1.4, 2.1.7 and 7.1.10 herein. Provided that no Event of Default exists and with Lender’s consent (which shall not be unreasonably withheld)then exist, after Completion any amounts remaining on deposit in the Restricted Securities Account upon Stabilized Occupancy of the Improvements, Borrower may draw amounts available under Mortgaged Property (or on the Contingency Line Item date of any earlier prepayment in full of the Project Loan Budget to fund Shortfalls in monthly interest due, which amounts accordance with Section 2.4 hereof) shall be deposited in returned to the Interest Reserve. Such drawing shall be in addition to any Interest Reserve Line Item advanced under the Project Loan pursuant to Section 2.14.10 hereof. (b) Following the occurrence of Final Completion, Lender shall reasonably cooperate with Borrower to amend the Project Loan Budget, Building Loan Budget, Project Loan Documents and Building Loan Documents such that: (x) the Building Loan Budget is amended to remove the amounts then available under the Building Loan Budget either in the contingency Line Item or as cost savings from other Line Items (the “Contingency Excess”) and the Building Loan Amount is reduced by the Contingency Excess; and (y) the contingency line item of the Project Loan Budget and the Project Loan Amount are increased by the Contingency Excess. Borrower and Lender shall execute and deliver such documents, certificates and instruments as may be reasonably required to effect the above described re-allocation, including, without limitation, the filing of an amended Section 22 Affidavit and the modification of the Project Loan Documents and Building Loan Documents to reflect the respective changes in the Project Loan Amount and the Building Loan Amount and Borrower shall obtain such other evidence as Lender may reasonably request to confirm that none of the foregoing shall adversely impact the validity or priority of its security interests in the Property Guarantor or otherwise adversely impact its rights and remedies under the Loan Documents including, without limitation, appropriate endorsements to the title insurance policy. Borrower shall pay any and all title insurance, recording and other charges and all reasonable costs and expenses (including legal fees) incurred by Lender disbursed in connection accordance with the foregoingGuarantor’s written directions.

Contingency Reserve. (a) Following the satisfaction The Hotel Project Budget contains one or more cost categories designated as “Contingency,” which represents Loan proceeds that have been allocated for disbursement by Xxxxxx, to pay contingent costs and expenses of the Initial Advance Conditionsconstructing, maintaining, leasing, and subject promoting the Hotel Project and such other costs or expenses as Lender shall approve (such allocated Loan proceeds being referred to herein as the “Contingency Reserve”). Any reallocation or use of funds in the Contingency Reserve will require the prior approval written consent of Lender in its sole discretionLender. Notwithstanding the foregoing, Borrower may revise the Project Loan Budget Xxxxxx’s consent will not be required with respect to move amounts available under any Line Item that are designated to “Contingency” to other Line Items reallocation or use of funds in the Project Loan Budget. In no event may Contingency Reserve if, after giving effect to such proposed reallocation or use, the aggregate amount disbursed or reallocated from the Contingency Line Item Reserve does not exceed the percentage of the Building Loan Budget be reallocated to any Line Item in the Project Loan Budget. Provided no Event of Default exists and with Lender’s consent (which shall not be unreasonably withheld), after Completion of the Improvements, Borrower may draw amounts available under as certified by General Contractor and verified by Xxxxxx’s Consultant; provided, however, in no event shall a reallocation from the Contingency Line Item Reserve cause the Contingency Reserve to be less than fifteen percent (15%) of the greater of (1) the Contingency Reserve stated in the initial Hotel Project Loan Budget approved by Lender, or (2) the Contingency Reserve as the same be increased by an amendment to fund Shortfalls the Hotel Project Budget approved by Lender. Notwithstanding anything to the contrary in monthly interest duethis Section, in no event may Borrower reallocate or use funds from the Contingency Reserve for the purpose of paying development fees, asset management fees, administrative fees, overhead, or similar fees and expenses to Borrower or any Affiliate of Borrower without the prior written consent of Lender, which amounts Lender may grant, deny, or condition in its sole discretion. Xxxxxxxx further agrees that Xxxxxx’s approval of any Change Order (including any Permitted Change Order) shall not constitute Lender’s implied consent to the reallocation or use of funds in the Contingency Reserve for the payment of any additional Project Costs arising from such Change Order, it being agreed that Xxxxxxxx’s right to the use or reallocation of funds in the Contingency Reserve shall be deposited in the Interest Reserve. Such drawing shall be in addition to any Interest Reserve Line Item advanced under the Project Loan pursuant to Section 2.14.10 hereof. (b) Following the occurrence of Final Completion, Lender shall reasonably cooperate with Borrower to amend the Project Loan Budget, Building Loan Budget, Project Loan Documents and Building Loan Documents such that: (x) the Building Loan Budget is amended to remove the amounts then available under the Building Loan Budget either in the contingency Line Item or as cost savings from other Line Items (the “Contingency Excess”) and the Building Loan Amount is reduced governed solely by the Contingency Excess; and (y) the contingency line item provisions of the Project Loan Budget and the Project Loan Amount are increased by the Contingency Excessthis Section. Borrower and Lender shall execute and deliver such documents, certificates and instruments as may be reasonably required to effect the above described re-allocation, including, without limitation, the filing of an amended Section 22 Affidavit and the modification of the Project Loan Documents and Building Loan Documents to reflect the respective changes in the Project Loan Amount and the Building Loan Amount and Borrower shall obtain such other evidence as Lender may reasonably request to confirm that none of the foregoing shall adversely impact the validity or priority of its security interests in the Property or otherwise adversely impact its rights and remedies under the Loan Documents including, without limitation, appropriate endorsements to the title insurance policy. Borrower shall pay any and all title insurance, recording and other charges and all reasonable costs and expenses (including legal fees) incurred by Lender in connection with the foregoing.​ ​ ​ Ex 10.274

Contingency Reserve. (a) Following The amount allocated as “contingency” or “contingency reserve” in the satisfaction of the Initial Advance Conditions, and subject to Project Budget will only be disbursed upon the prior approval of Lender Lender, such approval not to be unreasonably conditioned, withheld or delayed, provided, however, that in its sole discretionthe event such “contingency” line item may have increased from the amount set forth in the original Project Budget due to savings reallocated to such “contingency” line item, then Borrower may revise receive disbursement from such “contingency” line item without Lender’s approval (subject, however, to satisfaction of all other conditions to the Project making of a Loan Budget to move amounts available under any Line Item that are designated to set forth in this Agreement), so long as the amount remaining undisbursed from such “Contingencycontingency” to other Line Items line item remains greater than amount of such “contingency” line item as set forth in the original Project Loan Budget. In the event that Lender fails to respond in writing to any requested disbursement of contingency funds (a “Contingency Disbursement Request”) within five (5) Business Days after Lender’s receipt of such Contingency Disbursement Request (a “First Response Failure”), and following such First Response Failure, Lender fails to respond in writing to a second request to such Contingency Disbursement Request (a “Second Change Request”) within three (3) Business Days after Lender’s receipt of such Second Change Request, such Change Request and Second Change Request shall be deemed approved by Lender provided that such Second Change Request includes the following language in all caps in at least 12 point font: “NOTICE: FAILURE TO RESPOND TO THE ATTACHED/ENCLOSED REQUEST FOR APPROVAL WITHIN THREE (3) BUSINESS DAYS OF RECEIPT SHALL BE DEEMED TO CONSTITUTE LENDER’S APPROVAL TO SUCH REQUEST FOR APPROVAL”. The disbursement of a portion of such “contingency reserve” shall in no event may the Contingency Line Item way prejudice Lender from withholding disbursement of any further portion of the Building Loan Budget be reallocated to any Line Item in the Project Loan Budget. Provided no Event of Default exists and with Lender’s consent (which shall not be unreasonably withheld), after Completion of the Improvements, Borrower may draw amounts available under the Contingency Line Item of the Project Loan Budget to fund Shortfalls in monthly interest due, which amounts shall be deposited in the Interest Reserve. Such drawing shall be in addition to any Interest Reserve Line Item advanced under the Project Loan pursuant to Section 2.14.10 hereof“contingency reserve”. (b) Following the occurrence of Final Completion, Lender shall reasonably cooperate with Borrower to amend the Project Loan Budget, Building Loan Budget, Project Loan Documents and Building Loan Documents such that: (x) the Building Loan Budget is amended to remove the amounts then available under the Building Loan Budget either in the contingency Line Item or as cost savings from other Line Items (the “Contingency Excess”) and the Building Loan Amount is reduced by the Contingency Excess; and (y) the contingency line item of the Project Loan Budget and the Project Loan Amount are increased by the Contingency Excess. Borrower and Lender shall execute and deliver such documents, certificates and instruments as may be reasonably required to effect the above described re-allocation, including, without limitation, the filing of an amended Section 22 Affidavit and the modification of the Project Loan Documents and Building Loan Documents to reflect the respective changes in the Project Loan Amount and the Building Loan Amount and Borrower shall obtain such other evidence as Lender may reasonably request to confirm that none of the foregoing shall adversely impact the validity or priority of its security interests in the Property or otherwise adversely impact its rights and remedies under the Loan Documents including, without limitation, appropriate endorsements to the title insurance policy. Borrower shall pay any and all title insurance, recording and other charges and all reasonable costs and expenses (including legal fees) incurred by Lender in connection with the foregoing.