Common use of Costs of Alteration Clause in Contracts

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article X, no Alteration which when aggregated with all other Alterations then being undertaken by Mortgage Borrower involves costs estimated in writing by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine Lender) to be incurred in implementing the Alterations that exceed the Material Alteration Collateralization Threshold, shall be performed by or on behalf of Mortgage Borrower unless Mezzanine Borrower shall have caused Mortgage Borrower to deliver to Mortgage Lender Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Alterations minus the Material Alteration Collateralization Threshold (as set forth in the written estimate referred to above). Mezzanine Borrower shall cause Mortgage Borrower to deliver to Mortgage Lender any security deposited by the Master Lessee for any Alteration under the Master Lease. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contract) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage), the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 and which are held by Mortgage Lender in accordance with such Section 6.2. Payment or reimbursement of Mortgage Borrower’s expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in such Section 6.2. Any Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally shall have been deposited, returned to Mortgage Borrower upon the substitution of a Letter of Credit in a lesser amount) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage Lender of (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or the Alterations (including any retainages) approved by the Architect and reasonably approved by Mortgage Lender, free and clear of Liens, other than Permitted Encumbrances.

Appears in 3 contracts

Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc), Mezzanine Loan and Security Agreement (Station Casinos Inc), Mezzanine Loan and Security Agreement (Station Casinos Inc)

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Costs of Alteration. Notwithstanding anything to the contrary contained in this Article X, no Alteration which when aggregated with all other Alterations then being undertaken by Mortgage Borrower involves costs estimated in writing by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine Lender) to be incurred in implementing the Alterations that exceed exceeds the Material Alteration Collateralization Threshold, shall be performed by or on behalf of Mortgage Borrower unless Mezzanine Borrower shall have caused Mortgage Borrower to deliver to Mortgage Lender Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Alterations minus the Material Alteration Collateralization Threshold (as set forth in the written estimate referred to above). Mezzanine Borrower shall cause Mortgage Borrower to deliver to Mortgage Lender any security deposited by the Master Lessee for any Alteration under the Master Lease. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contract) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)6.2, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 and which are held by Mortgage Lender in accordance with such Section 6.2. Payment or reimbursement of Mortgage Borrower’s expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in such Section 6.2. Any Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally shall have been deposited, returned to Mortgage Borrower upon the substitution of a Letter of Credit in a lesser amount) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage Lender of (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or the Alterations (including any retainages) approved by the Architect and reasonably approved by Mortgage Lender, free and clear of Liens, other than Permitted Encumbrances.

Appears in 3 contracts

Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc), Mezzanine Loan and Security Agreement (Station Casinos Inc), Mezzanine Loan and Security Agreement (Station Casinos Inc)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article X, no Material Alteration or Alteration which when aggregated with all other Alterations (other than Material Alterations) then being undertaken by Mortgage Borrower involves costs estimated in writing (exclusive of Alterations being directly paid for by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine LenderTenants at the Property) to be incurred in implementing exceeds the Alterations that exceed the Material Alteration Collateralization ThresholdThreshold Amount, shall be performed by or on behalf of Mortgage Borrower unless Mezzanine Borrower shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Material Alteration or the Alterations minus the Material Alteration Collateralization Threshold Amount (as set forth in the Independent Architect’s written estimate referred to above). Mezzanine Borrower In addition to payment or reimbursement from time to time of Borrower’s expenses incurred in connection with any Material Alteration or any such Alteration, the amount of such security shall cause Mortgage Borrower be reduced on any given date to deliver the Independent Architect’s written estimate of the cost to Mortgage Lender complete the Material Alteration or the Alterations (including any security deposited by the Master Lessee for any Alteration under the Master Leaseretainages), free and clear of Liens, other than Permitted Encumbrances. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contractaggregate) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)6.2, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Independent Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 and which are held by Mortgage Lender in accordance with such Section 6.2. Payment or reimbursement of Mortgage Borrower’s expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in such Section 6.2. Any At any time after substantial completion of any Material Alteration or any such Alteration in respect of which Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally is deposited pursuant hereto, the whole balance of any Cash and Cash Equivalents so deposited by Borrower with Lender and then remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn by Borrower and shall have been depositedbe paid by Lender to Borrower, returned to Mortgage Borrower upon the substitution of and any other Cash and Cash Equivalents and/or a Letter of Credit in a lesser amountso deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Borrower, within ten (10) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage days after receipt by Lender of an application for such withdrawal and/or release together with an Officer’s Certificate, and signed also (as to the following clause (a)) by the Independent Architect, setting forth in substance as follows: (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or Alteration in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects substantially in accordance with any plans and specifications therefor previously filed with Lender under Section 10.2 and that, if applicable, a certificate of occupancy has been issued with respect to such Material Alteration or Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; and (b) that to the knowledge of the certifying Person all amounts which Borrower is or may become liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 7.3 and that lien waivers have been obtained from the general contractor and major subcontractors performing such Material Alterations or Alterations (including any retainages) approved by the Architect or such waivers are not customary and reasonably approved obtainable by Mortgage Lenderprudent managers in the area where the Property is located). For the purposes of this Section 10.3 only, free Alterations and clear Material Alterations shall not include tenant improvement alterations, improvements, demolitions or removals undertaken pursuant to a Lease in which the costs thereof are being fully paid out of Liensfunds held by Lender in the Reserve Funds or Alterations by Bank of America, other than Permitted EncumbrancesN.A. pursuant to the BofA Lease that are permitted to be undertaken by Bank of America, N.A. without the consent of Borrower.

Appears in 2 contracts

Samples: Loan and Security Agreement (KBS Real Estate Investment Trust, Inc.), Loan and Security Agreement (American Financial Realty Trust)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article X, no Alteration which when aggregated with all other Alterations then being undertaken by Mortgage Borrower involves costs estimated in writing by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine Lender) to be incurred in implementing the Alterations that exceed the Material Alteration Collateralization Threshold, shall be performed by or on behalf of Mortgage Borrower unless Mezzanine Borrower shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Material Alteration or the Alterations minus the Material Alteration Collateralization Threshold Amount (as set forth in the Independent Architect's written estimate referred to above). Mezzanine Borrower In addition to payment or reimbursement from time to time of Borrower's expenses incurred in connection with any Material Alteration or any such Alteration, the amount of such security shall cause Mortgage Borrower be reduced on any given date to deliver the excess of (x) the Independent Architect's then written estimate of the cost to Mortgage Lender complete the Material Alteration or 84 the Alterations (including any security deposited by retainages), free and clear of Liens, other than Permitted Encumbrances over (y) the Master Lessee for any Alteration under the Master LeaseThreshold Amount. Costs which are payable by Borrower in connection with any Material Alteration shall be subject to a retainage (which in no event shall not be less than five percent (5% %) in the aggregate with respect to each trade contract) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainageaggregate. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)6.2, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Independent Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 and which are held by Mortgage Lender in accordance with such Section 6.26.2 and less the Threshold Amount. Payment or reimbursement of Mortgage Borrower’s 's expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished made by Lender upon submission of a request therefor from time to time, together with an invoice evidencing the terms and conditions specified amount paid or then due. At any time after (i) substantial completion of any Material Alteration or any such Alteration in such Section 6.2. Any respect of which Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally shall is deposited pursuant hereto or (ii) the date on which Borrower delivers to Lender an Officer's Certificate (together with reasonable supporting documentation with respect thereto) stating that (A) the remaining costs of any Material Alteration no longer exceed, in the aggregate, the Threshold Amount and (B) to the knowledge of the certifying Person, all amounts which Borrower is then liable to pay in respect of such Material Alteration through the date of the certification have been depositedpaid in full or adequately provided for or are being contested in accordance with Section 7.3 and that lien waivers with respect to all portions of such Alterations which have been completed by such date and paid for have been obtained from the general contractor and major subcontractors performing such Material Alterations (or such waivers are not customary and reasonably obtainable by prudent managers in the area where the Property is located), returned then the whole balance of any Cash and Cash Equivalents so deposited by Borrower with Lender and then remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn by Borrower and shall be paid by Lender to Mortgage Borrower upon the substitution of Borrower, and any other Cash and Cash Equivalents and/or a Letter of Credit in a lesser amountso deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Borrower, within ten (10) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage days after receipt by Lender of (x) in the case of clause (ii) above, the Officer's Certificate described therein or (y) in the case of clause (i) above, an application for such withdrawal and/or release together with an Officer's Certificate, and signed also (as to the following clause (a)) by the Independent Architect, setting forth in substance as follows: (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or Alteration in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects substantially in accordance with any plans and specifications therefor previously filed with Lender under Section 10.2 and that, if applicable, a certificate of occupancy has been issued with respect to such Material Alteration or Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; and (b) that to the knowledge of the certifying Person all amounts which Borrower is or may become liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 7.3 and that lien waivers have been obtained from the general contractor and major subcontractors performing such Material Alterations or Alterations (including any retainages) approved by the Architect or such waivers are not customary and reasonably approved obtainable by Mortgage Lenderprudent managers in the area where the Property is located). For the purposes of this Section 10.3 only, free Alterations and clear Material Alterations shall not include tenant improvement alterations, improvements, demolitions or removals undertaken pursuant to (or as permitted by) a Lease in which the costs thereof are to be paid by or on behalf of Liensa Tenant or any Person claiming by, other than Permitted Encumbrancesthrough or under a Tenant. Nothing in this Section 10.3 shall limit the rights of the Citibank Tenant under the Citibank Lease with respect to Alterations (regardless of whether the same would constitute Material Alterations hereunder).

Appears in 2 contracts

Samples: Loan and Security Agreement (Reckson Associates Realty Corp), Loan and Security Agreement (Reckson Operating Partnership Lp)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article X, no Material Alteration which or Alteration which, when aggregated with all other Alterations (other than Material Alterations) then being undertaken by Mortgage Borrower involves costs estimated (or in writing by the case of the Maryland Property, Maryland Loan Guarantor) or Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine Lender) to be incurred in implementing exclusive of Alterations being directly paid for by Tenants at the Alterations that exceed Property), exceeds the Material Alteration Collateralization Threshold, Threshold Amount shall be performed by or on behalf of Mortgage Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) or Master Lessee unless Mezzanine Borrower shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than (a) the estimated cost of the Material Alteration or the Alterations minus the Material Alteration Collateralization Threshold Amount (as set forth in the Independent Architect’s written estimate referred to above)) or (b) in the case of Alterations being performed by or on behalf of the Master Lessee, any sums required to be deposited by Master Lessee under the Master Lease. Mezzanine Borrower (or in the case of the Maryland Property, Maryland Loan Guarantor) shall cause Mortgage Borrower to deliver to Mortgage Lender any security deposited by the Master Lessee for any Alteration under the Master Lease. In addition to payment or reimbursement from time to time of Borrower’s expenses incurred in connection with any Material Alteration or any such Alteration, the amount of any such security shall be reduced on any given date to the Independent Architect’s written estimate of the cost to complete the Material Alteration or the Alterations (including any retainages), free and clear of Liens, other than Permitted Encumbrances. Costs which are subject to retainage (which in no event shall be less than five percent (5% %) in the aggregate with respect until fifty percent (50%) of the work to each trade contractbe performed under the applicable contract has been substantially completed) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)6.2, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Independent Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 and which are held by Mortgage Lender in accordance with such Section 6.2. Payment or reimbursement of Mortgage Borrower’s expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in such Section 6.2. Any At any time after substantial completion of any Material Alteration or any such Alteration in respect of which Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally is deposited pursuant hereto, the whole balance of any Cash and Cash Equivalents so deposited by Borrower with Lender and then remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn by Borrower and shall have been depositedbe paid by Lender to Borrower, returned to Mortgage Borrower upon the substitution of and any other Cash and Cash Equivalents and/or a Letter of Credit in a lesser amountso deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Borrower, within ten (10) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage days after receipt by Lender of an application for such withdrawal and/or release together with an Officer’s Certificate, and signed also (as to the following clause (a)) by the Independent Architect, setting forth in substance as follows: (a) that to the payment knowledge of the costs certifying Person, the Material Alteration or Alteration in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects substantially in accordance with any plans and specifications therefor previously filed with Lender under Section 10.2 and that, if applicable, a certificate of occupancy has been issued with respect to such Material Alteration or Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; and (b) that to the knowledge of the certifying Person all amounts which Borrower is or may become liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 7.3 and that, except to the extent of such amountcontests, lien waivers have been obtained from the general contractor and major subcontractors performing such Material Alterations or Alterations (or such waivers are not customary and reasonably obtainable by prudent owners in the area where the Property is located). Notwithstanding the foregoing, in lieu of posting Cash and Cash Equivalents and/or a Letter of Credit with Lender pursuant to the provisions of this Section 10.3, Borrower may, at its election, deliver to lender a guaranty from Guarantor in form acceptable to Lender, pursuant to which Guarantor unconditionally guaranties the lien free completion of the subject Alteration and clear payment in full of Liens (i.e., assuming that the first all costs paid are those related thereto in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or the Alterations (including any retainages) approved by the Architect and reasonably approved by Mortgage Lender, free and clear of Liens, other than Permitted EncumbrancesThreshold Amount.

Appears in 2 contracts

Samples: Loan and Security Agreement (BlueLinx Holdings Inc.), Loan and Security Agreement (BlueLinx Holdings Inc.)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article X, no Material Alteration or Alteration which when aggregated with all other Alterations (other than Material Alterations) then being undertaken by Mortgage Borrower involves costs estimated in writing (exclusive of Alterations being directly paid for by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine Lenderor Tenants at the Property) to be incurred in implementing exceeds the Alterations that exceed the Material Alteration Collateralization ThresholdThreshold Amount, shall be performed by or on behalf of Mortgage Borrower unless Mezzanine Borrower shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Material Alteration or the Alterations minus the Material Alteration Collateralization Threshold Amount (as set forth in the Architect’s written estimate referred to above). Mezzanine Borrower shall cause Mortgage Borrower to deliver to Mortgage Lender any security deposited by the Master Lessee for any Alteration under the Master Lease. In addition to payment or reimbursement from time to time of Borrower’s expenses incurred in connection with any Material Alteration or any such Alteration, the amount of such security shall be reduced on any given date to the Architect’s written estimate of the cost to complete the Material Alteration or the Alterations (including any retainages), free and clear of Liens, other than Permitted Encumbrances. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contract) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)6.2, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 and which are held by Mortgage Lender in accordance with such Section 6.2. Payment or reimbursement of Mortgage Borrower’s expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in such Section 6.2. Any At any time after substantial completion of any Material Alteration or any such Alteration in respect of which Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally is deposited pursuant hereto, the whole balance of any Cash and Cash Equivalents so deposited by Borrower with Lender and then remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn by Borrower and shall have been depositedbe paid by Lender to Borrower, returned to Mortgage Borrower upon the substitution of and any other Cash and Cash Equivalents and/or a Letter of Credit in a lesser amountso deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Borrower, within ten (10) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage days after receipt by Lender of an application for such withdrawal and/or release together with an Officer’s Certificate, and signed also (as to the following clause (a)) by the Architect, setting forth in substance as follows: (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or Alteration in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects substantially in accordance with any plans and specifications therefor previously filed with Lender under Section 10.2 and that, if applicable, a certificate of occupancy has been issued with respect to such Material Alteration or Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; and (b) that to the knowledge of the certifying Person all amounts which Borrower is or may become liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 7.3 and that, except to the extent of such contests, lien waivers have been obtained from the general contractor and major subcontractors performing such Material Alterations or Alterations (including any retainages) approved by the Architect or such waivers are not customary and reasonably approved obtainable by Mortgage Lender, free and clear of Liens, other than Permitted Encumbrancesprudent owners in the area where the Property is located).

Appears in 2 contracts

Samples: Loan and Security Agreement (Toys R Us Inc), Loan and Security Agreement (Toys R Us Inc)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article X, no Material Alteration or Alteration which when aggregated with all other Alterations (other than Material Alterations) then being undertaken by Mortgage Borrower involves costs estimated in writing (exclusive of Alterations being directly paid for by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine LenderTenants at the Property) to be incurred in implementing exceeds the Alterations that exceed the Material Alteration Collateralization ThresholdThreshold Amount, shall be performed by or on behalf of Mortgage Borrower unless Mezzanine Borrower shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Material Alteration or the Alterations minus the Material Alteration Collateralization Threshold Amount (as set forth in the Independent Architect's written estimate referred to above). Mezzanine Borrower In addition to payment or reimbursement from time to time of Borrower's expenses incurred in connection with any Material Alteration or any such Alteration, the amount of such security shall cause Mortgage Borrower be reduced on any given date to deliver the Independent Architect's written estimate of the cost to Mortgage Lender complete the Material Alteration or the Alterations (including any security deposited by the Master Lessee for any Alteration under the Master Leaseretainages), free and clear of Liens, other than Permitted Encumbrances. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contractaggregate) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)6.2, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Independent Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 and which are held by Mortgage Lender in accordance with such Section 6.2. Payment or reimbursement of Mortgage Borrower’s 's expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in such Section 6.2. Any At any time after substantial completion of any Material Alteration or any such Alteration in respect of which Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally is deposited pursuant hereto, the whole balance of any Cash and Cash Equivalents so deposited by Borrower with Lender and then remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn by Borrower and shall have been depositedbe paid by Lender to Borrower, returned to Mortgage Borrower upon the substitution of and any other Cash and Cash Equivalents and/or a Letter of Credit in a lesser amountso deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Borrower, within ten (10) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage days after receipt by Lender of an application for such withdrawal and/or release together with an Officer's Certificate, and signed also (as to the following clause (a» by the Independent Architect, setting forth in substance as follows: (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or Alteration in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects substantially in accordance with any plans and specifications therefor previously filed with Lender under Section 10.2 and that, if applicable, a certificate of occupancy has been issued with respect to such Material Alteration or Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; and (b) that to the knowledge of the certifying Person all amounts which Borrower is or may become liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 7.3 and that lien waivers have been obtained from the general contractor and major subcontractors performing such Material Alterations or Alterations (including any retainages) approved by the Architect or such waivers are not customary and reasonably approved obtainable by Mortgage Lenderprudent managers in the area where the Property is located). For the purposes of this Section 10.3 only, free Alterations and clear Material Alterations shall not include tenant improvement alterations, improvements, demolitions or removals undertaken pursuant to a Lease in which the costs thereof are being fully paid out of Liensfunds held by Lender in the TI and Leasing Reserve Account or Alterations by Bank of America, other than Permitted EncumbrancesN.A. pursuant to the BofA Lease that are permitted to be undertaken by Bank of America, N.A. without the consent of Borrower.

Appears in 1 contract

Samples: Loan and Security Agreement (KBS Real Estate Investment Trust, Inc.)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article X, no Alteration which when aggregated with all other Alterations then being undertaken by Mortgage Borrower involves costs estimated in writing by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine Lender) to be incurred in implementing the Alterations that exceed the Material Alteration Collateralization Threshold, shall be performed by or on behalf of Mortgage Borrower unless Mezzanine Borrower shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Alterations minus the Material Alteration Collateralization Threshold (as set forth in the written estimate referred to above). Mezzanine Borrower shall cause Mortgage Borrower to deliver to Mortgage Lender any security deposited by the Master Lessee for any Alteration under the Master Lease. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contract) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)6.2, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 and which are held by Mortgage Lender in accordance with such Section 6.2. Payment or reimbursement of Mortgage Borrower’s expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in such Section 6.2. Any Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally shall have been deposited, returned to Mortgage Borrower upon the substitution of a Letter of Credit in a lesser amount) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage Lender of (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or the Alterations (including any retainages) approved by the Architect and reasonably approved by Mortgage Lender, free and clear of Liens, other than Permitted Encumbrances.

Appears in 1 contract

Samples: Loan and Security Agreement (Station Casinos Inc)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article X, no Material Alteration or Alteration which when aggregated with all other Alterations (other than Material Alterations) then being undertaken by Mortgage Borrower involves costs estimated in writing (exclusive of Alterations being directly paid for by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine Lenderor Tenants at the Property) to be incurred in implementing exceeds the Alterations that exceed the Material Alteration Collateralization ThresholdThreshold Amount, shall be performed by or on behalf of Mortgage Borrower unless Mezzanine Borrower shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Material Alteration or the Alterations minus the Material Alteration Collateralization Threshold Amount (as set forth in the Architect’s written estimate referred to above). Mezzanine Borrower shall cause Mortgage Borrower to deliver to Mortgage Lender any security deposited by the Master Lessee for any Alteration under the Master Lease. In addition to payment or reimbursement from time to time of Borrower’s expenses incurred in connection with any Material Alteration or any such Alteration, the amount of such security shall be reduced on any given date to the Architect’s written estimate of the cost to complete the Material Alteration or the Alterations (including any retainages), free and clear of Liens, other than Permitted Encumbrances. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contract) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)6.2, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 and which are held by Mortgage Lender in accordance with such Section 6.2. Payment or reimbursement of Mortgage Borrower’s expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in such Section 6.2. Any At any time after substantial completion of any Material Alteration or any such Alteration in respect of which Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally is deposited pursuant hereto, the whole balance of any Cash and Cash Equivalents so deposited by Borrower with Lender and then remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn by Borrower and shall have been depositedbe paid by Lender to Borrower, returned to Mortgage Borrower upon the substitution of and any other Cash and Cash Equivalents and/or a Letter of Credit in a lesser amountso deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Borrower, within ten (10) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage days after receipt by Lender of an application for such withdrawal and/or release together with an Officer’s Certificate, and signed also (as to the following clause (a)) by the Architect, setting forth in substance as follows: (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or Alteration in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects substantially in accordance with any plans and specifications therefor previously filed with Lender under Section 10.2 and that, if applicable, a certificate of occupancy has been issued with respect to such Material Alteration or Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; and (b) that, to the knowledge of the certifying Person, all amounts which Borrower is or may become liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 7.3 and that, except to the extent of such contests, lien waivers have been obtained from the general contractor and major subcontractors performing such Material Alterations or Alterations (including any retainages) approved by the Architect or such waivers are not customary and reasonably approved obtainable by Mortgage Lender, free and clear of Liens, other than Permitted Encumbrancesprudent owners in the area where the Property is located).

Appears in 1 contract

Samples: Loan and Security Agreement (Bloomin' Brands, Inc.)

Costs of Alteration. (a) Notwithstanding anything to the contrary contained in this Article X, no Alteration which when aggregated with all other Alterations then being undertaken by Mortgage Borrower involves costs estimated in writing by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine Lender) to be incurred in implementing the Alterations that exceed the Material Alteration Collateralization Threshold, shall be performed by or on behalf of Mortgage Borrower and/or Maryland Owner unless Mezzanine Borrower and/or Maryland Owner shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Cash and Cash Equivalents Equivalents, or a guaranty by VOP or any Person, provided that VOP or such other Person maintains an Investment Grade rating as to its a long-term unsecured debt, to Lender (in form and substance reasonably acceptable to Lender and substantially similar to the Reserve Guaranty) (an “Alteration Deficiency Guaranty”) and/or a Letter of Credit as security in an amount not less than the estimated cost of the Alterations minus the Material Alteration Collateralization less the Threshold Amount (as set forth in the Architect’s written estimate referred to above) and less such amounts that are in the Reserve Accounts that relate to such Work (if any) (the “Alteration Deficiency”), or other assurances reasonably acceptable to Lender of Borrower’s and/or Maryland Owner’s ability to complete and pay for such Alterations. Mezzanine Borrower In addition to payment or reimbursement from time to time of Borrower’s and/or Maryland Owner’s expenses incurred in connection with any Material Alteration or any such Alteration, the amount of such security and/or amount for which Guarantor is liable under a Alteration Deficiency Guaranty shall cause Mortgage Borrower be reduced on any given date to deliver the Architect’s written estimate of the cost to Mortgage Lender complete the Material Alteration (including any security deposited by retainages), free and clear of Liens, other than Permitted Encumbrances, less the Master Lessee for any Alteration under Threshold Amount (as set forth in the Master LeaseArchitect’s written estimate). Costs which are subject to retainage (which in no event shall be less than five percent (5% %) in the aggregate with respect to each trade contractaggregate) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or such Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower and/or Maryland Owner shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)6.2, the amount of the Cash and Cash Equivalents Equivalents, Alteration Deficiency Guaranty and/or Letter of Credit to be furnished pursuant hereto (if any) need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Independent Architect), less the sum of (i) the amount of any Proceeds which Mortgage Borrower and/or Maryland Owner may be entitled to withdraw pursuant to such Section 6.2 and which are held by Mortgage Lender in accordance with such Section 6.2. 6.2 and (ii) the Threshold Amount. (b) Payment or reimbursement of Mortgage Borrower’s and/or Maryland Owner’s expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and subject to the conditions specified set forth in sub-paragraphs (i), (ii), (iii) and (iv) below and in Sections 10.3(c) and (d): (i) there shall be no continuing Event of Default; (ii) if, at any time, the estimated remaining cost of the Material Alteration or Alteration (as estimated by the Architect referred to in sub-paragraph (iii) below) which exceeds the Threshold Amount shall exceed the sum of the Cash and Cash Equivalents, Letter of Credit and/or Alteration Deficiency Guaranty furnished pursuant hereto, and for so long as any such Section 6.2. Any Alteration Deficiency shall exist, Lender shall not be required to make any disbursement to Borrower and/or Maryland Owner until Borrower and/or Maryland Owner, at its election, either deposits with or delivers to Lender (A) Cash and Cash Equivalents and/or a Letter or Letters of Credit deposited pursuant hereto and/or an additional Alteration Deficiency Guaranty in an amount equal to the Alteration Deficiency, or (B) such other evidence of Borrower’s ability to meet such excess costs as shall be returned to Mortgage Borrower (or if a Letter of Credit originally shall have been deposited, returned to Mortgage Borrower upon the substitution of a Letter of Credit in a lesser amount) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage Lender; (iii) Lender shall have reasonably approved the plans and specifications for the Material Alteration and any material change orders in connection with such plans and specifications; and (iv) Lender shall, within a reasonable period of time prior to Borrower’s and/or Maryland Owner’s request for disbursement, be furnished with an estimate of the remaining cost of the Material Alteration or such Alteration accompanied by an Architect’s certification as to such remaining costs. (c) Disbursements of the Cash or Cash Equivalents (if any) held by Lender to or as directed by Borrower and/or Maryland Owner hereunder shall be made from time to time (but not more frequently than once in any month) by Lender but only for so long as no Monetary Default or Event of Default shall have occurred and be continuing, as such Alteration progresses upon receipt by Lender of (ai) an Officer’s Certificate dated not more than five (5) Business Days prior to the application for such payment, requesting such payment or reimbursement and describing the portion of the Alteration performed that is the subject of such request, the parties that performed such portion of the Alteration and the actual cost thereof, and also certifying that such portion of the Alteration and materials are or, upon disbursement of the payment of requested to the costs of such Alteration in such amountparties entitled thereto, will be free and clear of Liens other than Permitted Encumbrances, (i.e., assuming ii) evidence reasonably satisfactory to Lender that the first costs paid are those (A) all materials installed and work and labor performed in excess connection with such portion of the Material Alteration Collateralization Thresholdor Alteration have been paid for in full or will be paid for from such disbursement and (B) there exist no notices of pendency, stop orders, mechanic’s liens or notices of intention to file same (unless the same is required by State law as a condition to the payment of a contract) or any liens or encumbrances of any nature whatsoever on the Individual Property arising out of the portion of the Material Alteration or Alteration, other than Permitted Encumbrances and Liens that have been bonded and (biii) a reduction in the written an estimate of the remaining cost to complete the Material Alteration or Alteration (as described in Section 10.3(b)(iv) above). (d) At any time after substantial completion of any Alteration in respect of which Cash and Cash Equivalents and/or a Letter of Credit is deposited pursuant hereto or for which an Alteration Deficiency Guaranty is delivered hereunder, the whole balance of any Cash and Cash Equivalents so deposited by Borrower and/or Maryland Owner with Lender and then remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn by Borrower and/or Maryland Owner and shall be paid by Lender to Borrower and/or Maryland Owner, and any other Cash and Cash Equivalents, Alteration Deficiency Guaranty (to the extent applicable), and/or a Letter of Credit so deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Borrower, within ten (10) days after receipt by Lender of an application for such withdrawal and/or release together with an Officer’s Certificate, and signed also (as to the following sub-paragraph (i)) by the Architect, setting forth in substance as follows: (i) that the Alteration in respect of which such Cash and Cash Equivalents, Alteration Deficiency Guaranty and/or a Letter of Credit was deposited has been substantially completed in all material respects substantially in accordance with any plans and specifications therefor previously filed with Lender under Section 10.2 and that, if applicable, a certificate of occupancy has been issued with respect to such Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; (ii) that to the knowledge of the certifying Person all amounts which Borrower is or may become liable to pay in respect of such Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 7.3 and that lien waivers have been obtained from the general contractor and major subcontractors performing such Alterations (including any retainages) approved by the Architect or such waivers are not customary and reasonably approved obtainable by Mortgage Lenderprudent managers in the area where the applicable Individual Property is located) subject to those amounts contested in accordance with the provisions of Section 7.3; and (iii) For the purposes of this Section 10.3 only, free Alterations and clear Material Alterations shall not include tenant improvement alterations, improvements, demolitions or removals undertaken pursuant to a Lease. (e) From and after the occurrence, and during the continuance of, a Guarantor Rating Period, Borrower and/or Maryland Owner shall either (i) promptly deliver to Lender cash or cash equivalents, to be held in an interest bearing money-market account, or (ii) promptly deliver to Lender a Letter of LiensCredit in lieu of such cash deposits, other than Permitted Encumbranceswhich Letter of Credit shall satisfy the requirements of Section 16.9 of this Agreement, each in an amount equal to the amount guaranteed under the Alteration Deficiency Guaranty or such lesser amount as may then be required hereunder.

Appears in 1 contract

Samples: Loan and Security Agreement (Urban Edge Properties)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article XSection 12(c) hereof, no Material Alteration nor any Alteration which when aggregated with all other Alterations (other than Material Alterations) then being undertaken by Mortgage Borrower involves costs estimated in writing Mortgagor (exclusive of Alterations being directly paid for by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine LenderTenants) to be incurred in implementing at the Alterations that exceed Properties exceeds the Material Aggregate Alteration Collateralization ThresholdThreshold Amount, shall be performed by or on behalf of Mortgage Borrower Mortgagor unless Mezzanine Borrower Mortgagor shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Mortgagee Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost (exclusive of the Alterations minus costs to be funded from amounts held in any Account) of the Material Alteration Collateralization or the Alterations in excess of the Threshold Amount (as set forth in the Independent Architect's written estimate referred to above). Mezzanine Borrower In addition to payment or reimbursement from time to time of Mortgagor's expenses incurred in connection with any Material Alteration or any such Alteration, the amount of such security shall cause Mortgage Borrower be reduced on any given date by Mortgagee delivering funds to deliver Mortgagor in a sum equivalent to Mortgage Lender the Independent Architect's written estimate of the cost to complete the Material Alterations or the Alterations (including any security deposited by the Master Lessee for any Alteration under the Master Leaseretainages), free and clear of Liens, other than Permitted Encumbrances. Costs which are subject to retainage (which in no event shall be less than five percent (5% in the aggregate with respect to each trade contract%)) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower Mortgagor shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)Sections 6(f) and 6(g) hereof, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Independent Architect), less the sum of the amount of any Proceeds which Mortgage Borrower Mortgagor may be entitled to withdraw pursuant to such Section 6.2 Sections 6(f) and 6(g) hereof and which are held by Mortgage Lender Mortgagee in accordance with such Section 6.26 hereof. Payment or reimbursement of Mortgage Borrower’s Mortgagor's expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in Sections 6(f) through 6(g) hereof. At any time after substantial completion of any Material Alteration or any such Section 6.2. Any Alteration in respect whereof Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally was deposited pursuant hereto, the whole balance of any Cash and Cash Equivalents so deposited by Mortgagee and then remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn by Mortgagor and shall have been depositedbe paid by Mortgagee to Mortgagor, returned to Mortgage Borrower upon the substitution of and any other Cash and Cash Equivalents and/or a Letter of Credit so deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Mortgagor, within ten (10) days after receipt by Mortgagee of an application for such withdrawal and/or release together with an Officer's Certificate, and signed also (as to the following clause (i)) by the Independent Architect, setting forth in a lesser amountsubstance as follows: (i) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage Lender of (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or Alteration in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects in accordance with any plans and specifications therefor previously filed with Mortgagee under Section 12(c) hereof and that, if applicable, a certificate of occupancy has been issued with respect to such Material Alteration or Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; and (ii) that to the knowledge of the certifying Person all amounts which Mortgagor is or may become liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 7(c) hereof and that lien waivers have been obtained from the general contractor and major subcontractors performing such Material Alterations or Alterations (including any retainages) approved by the Architect or such waivers are not customary and reasonably approved obtainable by Mortgage Lender, free and clear of Liens, other than Permitted Encumbrancesprudent managers in the area where the Property is located).

Appears in 1 contract

Samples: Fee and Subleasehold Mortgage, Security Agreement, Financing Statement, Fixture Filing and Assignment of Leases, Rents and Security Deposits (Tower Realty Trust Inc)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article X, no Alteration which when aggregated with all other Alterations then being undertaken by Mortgage Borrower involves costs estimated in writing by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine Lender) to be incurred in implementing the Alterations that exceed the Material Alteration Collateralization Threshold, shall be performed by or on behalf of Mortgage Borrower unless Mezzanine Borrower shall have caused Mortgage Borrower to deliver to Mortgage Lender Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Alterations minus the Material Alteration Collateralization Threshold (as set forth in the written estimate referred to above). Mezzanine Borrower shall cause Mortgage Borrower to deliver to Mortgage Lender any security deposited by the Master Lessee for any Alteration under the Master Lease. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contract) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage), ) the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 and which are held by Mortgage Lender in accordance with such Section 6.2. Payment or reimbursement of Mortgage Borrower’s expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in such Section 6.2. Any Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally shall have been deposited, returned to Mortgage Borrower upon the substitution of a Letter of Credit in a lesser amount) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage Lender of (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or the Alterations (including any retainages) approved by the Architect and reasonably approved by Mortgage Lender, free and clear of Liens, other than Permitted Encumbrances.

Appears in 1 contract

Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)

Costs of Alteration. Notwithstanding anything to the contrary ------------------- contained in this Article XSection 12(c) hereof, no Material Alteration nor any Alteration ------------- which when aggregated with all other Alterations (other than Material Alterations) then being undertaken by Mortgage Borrower involves costs estimated in writing Grantor (exclusive of Alterations being directly paid for by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine LenderTenants) to be incurred in implementing at the Alterations that exceed Properties exceeds the Material Aggregate Alteration Collateralization ThresholdThreshold Amount, shall be performed by or on behalf of Mortgage Borrower Grantor unless Mezzanine Borrower Grantor shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Beneficiary Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost (exclusive of the Alterations minus costs to be funded from amounts held in any Account) of the Material Alteration Collateralization or the Alterations in excess of the Alteration Threshold Amount (as set forth in the Independent Architect's written estimate referred to above). Mezzanine Borrower In addition to payment or reimbursement from time to time of Grantor's expenses incurred in connection with any Material Alteration or any such Alteration, the amount of such security shall cause Mortgage Borrower be reduced on any given date to deliver the Independent Architect's written estimate of the cost to Mortgage Lender complete the Material Alterations or the Alterations (including any security deposited by the Master Lessee for any Alteration under the Master Leaseretainages), free and clear of Liens, other than Permitted Encumbrances. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contract%) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower Grantor shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)Sections 6(g) and 6(h) hereof, the amount of the Cash and Cash ---------------------- Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Independent Architect), less the sum of the amount of any Proceeds which Mortgage Borrower Grantor may be entitled to withdraw pursuant to such Section 6.2 Sections 6(g) and 6(h) hereof and which are held by Mortgage Lender Beneficiary in accordance ---------------------- with such Section 6.26 hereof. Payment or reimbursement of Mortgage Borrower’s Grantor's expenses incurred --------- with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in Sections 6(g) through ------------- 6(h) hereof. At any time after substantial completion of any Material Alteration ---- or any such Section 6.2. Any Alteration in respect whereof Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally was deposited pursuant hereto, the whole balance of any Cash and Cash Equivalents so deposited by Beneficiary and then remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn by Grantor and shall have been depositedbe paid by Beneficiary to Grantor, returned to Mortgage Borrower upon the substitution of and any other Cash and Cash Equivalents and/or a Letter of Credit so deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Grantor, within ten (10) days after receipt by Beneficiary of an application for such withdrawal and/or release together with an Officer's Certificate, and signed also (as to the following clause (i)) by the Independent Architect, setting forth in a lesser amountsubstance as follows: (i) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage Lender of (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or Alteration in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects in accordance with any plans and specifications therefor previously filed with Beneficiary under Section 12 hereof and that, if applicable, a certificate ---------- of occupancy has been issued with respect to such Material Alteration or Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; and (ii) that to the knowledge of the certifying Person all amounts which Grantor is or may become liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 7(c) hereof and that lien waivers have been ------------ obtained from the general contractor and major subcontractors performing such Material Alterations or Alterations (including any retainages) approved by the Architect or such waivers are not customary and reasonably approved obtainable by Mortgage Lender, free and clear of Liens, other than Permitted Encumbrancesprudent managers in the area where such Property is located).

Appears in 1 contract

Samples: Mortgage Agreement (Kilroy Realty Corp)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article X, no Material Alteration or Alteration which when aggregated with all other Alterations (other than Material Alterations) then being undertaken by Mortgage Borrower involves costs estimated in writing (exclusive of Alterations being directly paid for by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine LenderTenants at the Property) to be incurred in implementing exceeds the Alterations that exceed the Material Alteration Collateralization ThresholdThreshold Amount, shall be performed by or on behalf of Mortgage Borrower unless Mezzanine Borrower shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Material Alteration or the Alterations minus the Material Alteration Collateralization Threshold Amount (as set forth in the Independent Architect's written estimate referred to above). Mezzanine Borrower In addition to payment or reimbursement from time to time of Borrower's expenses incurred in connection with any Material Alteration or any such Alteration, the amount of such security shall cause Mortgage Borrower be reduced on any given date to deliver the Independent Architect's written estimate of the cost to Mortgage Lender complete the Material Alteration or the Alterations (including any security deposited by the Master Lessee for any Alteration under the Master Leaseretainages), free and clear of Liens, other than Permitted Encumbrances. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contractaggregate) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)6.2, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Independent Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 and which are held by Mortgage Lender in accordance with such Section 6.2. Payment or reimbursement of Mortgage Borrower’s 's expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in such Section 6.2. Any At any time after substantial completion of any Material Alteration or any such Alteration in respect of which Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally is deposited pursuant hereto, the whole balance of any Cash and Cash Equivalents so deposited by Borrower with Lender and then remaining on deposit (together with earnings thereon), as well as all retainages, 77 may be withdrawn by Borrower and shall have been depositedbe paid by Lender to Borrower, returned to Mortgage Borrower upon the substitution of and any other Cash and Cash Equivalents and/or a Letter of Credit in a lesser amountso deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Borrower, within ten (10) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage days after receipt by Lender of an application for such withdrawal and/or release together with an Officer's Certificate, and signed also (as to the following clause (a)) by the Independent Architect, setting forth in substance as follows: (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or Alteration in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects substantially in accordance with any plans and specifications therefor previously filed with Lender under Section 10.2 and that, if applicable, a certificate of occupancy has been issued with respect to such Material Alteration or Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; and (b) that to the knowledge of the certifying Person all amounts which Borrower is or may become liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 7.3 and that lien waivers have been obtained from the general contractor and major subcontractors performing such Material Alterations or Alterations (including any retainages) approved by the Architect or such waivers are not customary and reasonably approved obtainable by Mortgage Lenderprudent managers in the area where the Property is located). (c) For the purposes of this Section 10.3 only, free Alterations and clear Material Alterations shall not include tenant improvement alterations, improvements, demolitions or removals undertaken pursuant to a Lease in which the costs thereof are being fully paid out of Liensfunds held by Lender in the TI and Leasing Reserve Account or Alterations by Bank of America, other than Permitted EncumbrancesN.A. pursuant to the BofA Lease that are permitted to be undertaken by Bank of America, N.A. without the consent of Borrower.

Appears in 1 contract

Samples: Loan and Security Agreement (American Financial Realty Trust)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article X, no Material Alteration or Alteration which when aggregated with all other Alterations (other than Material Alterations) then being undertaken by Mortgage Borrower involves costs estimated in writing by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine Lender) to be incurred in implementing exceeds the Alterations that exceed the Material Alteration Collateralization ThresholdThreshold Amount, shall be performed by or on behalf of Mortgage Borrower unless Mezzanine Borrower shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender (a) Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Material Alteration or the Alterations minus the Material Alteration Collateralization Threshold Amount (as set forth in the Independent Architect’s written estimate referred to above), or (b) a completion guaranty, in form and substance acceptable to Lender, from a credit-worthy Person reasonably acceptable to Lender (it being agreed that Guarantor shall be an acceptable guarantor so long as at such time Guarantor’s net worth equals or exceeds five times the anticipated aggregate cost of such Material Alteration). Mezzanine Borrower Any Cash and Cash Equivalents and/or a Letter of Credit delivered as such security shall cause Mortgage Borrower be reduced on any given date (but no more frequently than monthly) to deliver the Independent Architect’s written estimate of the cost to Mortgage Lender complete the Material Alteration or the Alterations (including any security deposited by the Master Lessee for any Alteration under the Master Leaseretainage), free and clear of Liens, other than Permitted Encumbrances. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contractaggregate) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)6.2, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Independent Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 and which are held by Mortgage Lender in accordance with such Section 6.2. Payment or reimbursement of Mortgage Borrower’s expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in such Section 6.2. Any At any time after substantial completion of any Material Alteration or any such Alteration in respect of which Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally is deposited pursuant hereto, the whole balance of any Cash and Cash Equivalents so deposited by Borrower with Lender and then remaining on deposit (together with earnings thereon), as well as all retainage, may be withdrawn by Borrower and shall have been depositedbe paid by Lender to Borrower, returned to Mortgage Borrower upon the substitution of and any other Cash and Cash Equivalents and/or a Letter of Credit in a lesser amount) as Mortgage Borrower shall provide written evidenceso deposited or delivered shall, in form reasonably satisfactory to Mortgage the extent it has not been called upon, reduced or theretofore released, be released to Borrower, within 10 days after receipt by Lender of an application for such withdrawal and/or release together with an Officer’s Certificate, and signed also (as to the following clause (a)) by the Independent Architect, setting forth in substance as follows: (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or Alteration in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects substantially in accordance with any plans and specifications therefor previously filed with Lender under Section 10.2 and that, if applicable, a certificate of occupancy has been issued with respect to such Material Alteration or Alteration by the relevant Governmental Authority or, if not applicable, that a certificate of occupancy is not required; and (b) that to the knowledge of the certifying Person all amounts which Borrower is or may become liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 7.3 and that lien waivers have been obtained from the general contractor and major subcontractors performing such Material Alterations or Alterations (including any retainages) approved by the Architect or such waivers are not customary and reasonably approved obtainable by Mortgage Lender, free and clear of Liens, other than Permitted Encumbrancesprudent managers in the area where the Property is located).

Appears in 1 contract

Samples: Loan and Security Agreement (Ashford Hospitality Trust Inc)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article XSection 12(c) hereof, no Material Alteration nor any Alteration other than Alterations related to the initial construction of a Property for which funds equal to the cost of construction has been deposited into an escrow account controlled by Lender, which when aggregated with all other Alterations (other than Material Alterations) then being undertaken by Mortgage Borrower involves costs estimated in writing (exclusive of Alterations being directly paid for by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine LenderTenants) to be incurred in implementing at the Alterations that exceed Properties exceeds the Material Aggregate Alteration Collateralization ThresholdThreshold Amount, shall be performed by or on behalf of Mortgage Borrower unless Mezzanine Borrower shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost (exclusive of the Alterations minus costs to be funded from amounts held in any Account) of the Material Alteration Collateralization or the Alterations in excess of the Threshold Amount (as set forth in the Independent Architect's written estimate referred to above). Mezzanine In addition to payment or reimbursement from time to time of Borrower's expenses incurred in connection with any Material Alteration or any such Alteration, the amount of such security shall be reduced on any given date by Lender delivering funds to Borrower shall cause Mortgage Borrower in a sum equivalent to deliver the Independent Architect's written estimate of the cost to Mortgage Lender complete the Material Alterations or the Alterations (including any security deposited by the Master Lessee for any Alteration under the Master Leaseretainages), free and clear of Liens, other than Permitted Encumbrances. Costs which are subject to retainage (which in no event shall be less than five percent (5% in the aggregate with respect to each trade contract%)) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)Sections 6(f) and 6(g) hereof, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Independent Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 Sections 6(f) and 6(g) hereof and which are held by Mortgage Lender in accordance with such Section 6.26 hereof. Payment or reimbursement of Mortgage Borrower’s 's expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in Sections 6(f) through 6(g) hereof. At any time after substantial completion of any Material Alteration or any such Section 6.2. Any Alteration in respect whereof Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally was deposited pursuant hereto, the whole balance of any Cash and Cash Equivalents so deposited by Lender and then remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn by Borrower and shall have been depositedbe paid by Lender to Borrower, returned to Mortgage Borrower upon the substitution of and any other Cash and Cash Equivalents and/or a Letter of Credit in a lesser amountso deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Borrower, within ten (10) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage days after receipt by Lender of an application for such withdrawal and/or release together with an Officer's Certificate, and signed also (aas to the following clause (i)) by the payment of the costs of such Alteration Independent Architect, setting forth in such amount, free and clear of Liens substance as follows: (i.e., assuming i) that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or Alteration in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects in accordance with any plans and specifications therefor previously filed with Lender under Section 12(c) hereof and that, if applicable, a certificate of occupancy has been issued with respect to such Material Alteration or Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; and (ii) that to the knowledge of the certifying Person all amounts which Borrower is or may become liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 7(c) hereof and that lien waivers have been obtained from the general contractor and major subcontractors performing such Material Alterations or Alterations (including any retainages) approved by the Architect or such waivers are not customary and reasonably approved obtainable by Mortgage Lender, free and clear of Liens, other than Permitted Encumbrancesprudent managers in the area where the Property is located).

Appears in 1 contract

Samples: Mortgage, Deed of Trust, Deed to Secure Debt, Security Agreement (Homestead Village Inc)

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Costs of Alteration. Notwithstanding anything to the contrary contained in this Article X, no Alteration which when aggregated with all other Alterations then being undertaken by Mortgage Borrower involves costs estimated in writing by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine Lender) to be incurred in implementing the Alterations that exceed exceeds the Material Alteration Collateralization Threshold, shall be performed by or on behalf of Mortgage Borrower unless Mezzanine Borrower shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Alterations minus the Material Alteration Collateralization Threshold (as set forth in the written estimate referred to above). Mezzanine Borrower shall cause Mortgage Borrower to deliver to Mortgage Lender any security deposited by the Master Lessee for any Alteration under the Master Lease. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contract) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)6.2, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 and which are held by Mortgage Lender in accordance with such Section 6.2. Payment or reimbursement of Mortgage Borrower’s expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in such Section 6.2. Any Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally shall have been deposited, returned to Mortgage Borrower upon the substitution of a Letter of Credit in a lesser amount) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage Lender of (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or the Alterations (including any retainages) approved by the Architect and reasonably approved by Mortgage Lender, free and clear of Liens, other than Permitted Encumbrances.

Appears in 1 contract

Samples: Loan and Security Agreement (Station Casinos Inc)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article XSection 12(c) hereof, no Material Alteration nor any Alteration which when aggregated with all other Alterations (other than Material Alterations) then being undertaken by Mortgage Borrower involves costs estimated in writing Grantor (exclusive of Alterations being directly paid for by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine LenderTenants) to be incurred in implementing at the Alterations that exceed Properties exceeds the Material Alteration Collateralization ThresholdThreshold Amount, shall be performed by or on behalf of Mortgage Borrower Grantor unless Mezzanine Borrower Grantor shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Beneficiary Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost (exclusive of the Alterations minus costs to be funded from amounts held in any Account) of the Material Alteration Collateralization or the Alterations in excess of the Threshold Amount (as set forth in the Independent Architect's written estimate referred to above). Mezzanine Borrower In addition to payment or reimbursement from time to time of Grantor's expenses incurred in connection with any Material Alteration or any such Alteration, the amount of such security shall cause Mortgage Borrower be reduced on any given date to deliver the 59 Independent Architect's written estimate of the cost to Mortgage Lender complete the Material Alterations or the Alterations (including any security deposited by the Master Lessee for any Alteration under the Master Leaseretainages), free and clear of Liens, other than Permitted Encumbrances. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contract%) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower Grantor shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)Sections 6(g) and 6(h) hereof, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Independent Architect), less the sum of the amount of any Proceeds which Mortgage Borrower Grantor may be entitled to withdraw pursuant to such Section 6.2 Sections 6(g) and 6(h) hereof and which are held by Mortgage Lender Beneficiary in accordance with such Section 6.26 hereof. Payment or reimbursement of Mortgage Borrower’s Grantor's expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in Sections 6(g) through 6(h) hereof. At any time after substantial completion of any Material Alteration or any such Section 6.2. Any Alteration in respect whereof Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally was deposited pursuant hereto, the whole balance of any Cash and Cash Equivalents so deposited by Beneficiary and then remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn by Grantor and shall have been depositedbe paid by Beneficiary to Grantor, returned to Mortgage Borrower upon the substitution of and any other Cash and Cash Equivalents and/or a Letter of Credit so deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Grantor, within ten (10) days after receipt by Beneficiary of an application for such withdrawal and/or release together with an Officer's Certificate, and signed also (as to the following clause (i)) by the Independent Architect, setting forth in a lesser amountsubstance as follows: (i) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage Lender of (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or the Alterations (including Alteration in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects in accordance with any retainagesplans and specifications therefor previously filed with Beneficiary under Section 12(c) approved hereof and that, if applicable, a certificate of occupancy has been issued with respect to such Material Alteration or Alteration by the Architect relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; and reasonably approved by Mortgage Lender, free and clear (ii) that to the knowledge of Liens, other than Permitted Encumbrances.the certifying Person all amounts which Grantor is or may become liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full 60

Appears in 1 contract

Samples: Indenture of Mortgage, Deed of Trust, Security Agreement, Financing Statement, Fixture Filing and Assignment of Leases, Rents and Security Deposits (CBL & Associates Properties Inc)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article X, no Material Alteration nor any Alteration which when aggregated with all other Alterations (other than Material Alterations) then being undertaken by Mortgage Borrower involves costs estimated in writing at any one time (exclusive of Alterations being directly paid for by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower Tenants at the Property or out of the TI and Mezzanine LenderLeasing Reserve Account or the Structural Reserve Account) to be incurred in implementing exceeds the Alterations that exceed the Material Alteration Collateralization ThresholdThreshold Amount, shall be performed by or on behalf of Mortgage Borrower unless Mezzanine Borrower shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Alterations minus the Material Alteration Collateralization or the Alterations in excess of the Threshold Amount (as set forth in the Independent Architect's written estimate referred to above). Mezzanine Lender shall, within fifteen (15) Business Days of a written request from Borrower and satisfaction of the requirements set forth in this Section 10.3 release such security to Borrower for payment or reimbursement from time to time of Borrower's expenses incurred in connection with any Material Alteration or any Alteration. Borrower shall cause Mortgage Borrower not make a request for disbursement more frequently than once in any calendar month and the total amount of any request shall not be less than $25,000 (except in the case of the final request for disbursement). In addition, the amount of such security shall be reduced on any given date to deliver the Independent Architect's written estimate of the cost to Mortgage Lender complete the Material Alteration or the Alterations (including any security deposited by the Master Lessee for any Alteration under the Master Leaseretainages), free and clear of Liens, other than Permitted Encumbrances. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contractaggregate) shall be treated as due and payable and unpaid from part of the date they would be due and payable but for their characterization as subject estimated cost to retainagecomplete any Alteration. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)6.2, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Independent Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 and which are held by Mortgage Lender in accordance with such Section 6.2. Payment or reimbursement of Mortgage Borrower’s 's expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in such Section 6.2. Any At any time after substantial completion of any Material Alteration or any such Alteration in respect of which Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally was deposited pursuant hereto, the whole balance of any Cash and Cash Equivalents so deposited by Borrower with Lender and then remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn by Borrower and shall have been depositedbe paid by Lender to Borrower, returned to Mortgage Borrower upon the substitution of and any other Cash and Cash Equivalents and/or a Letter of Credit in a lesser amountso deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Borrower and from the lien hereof, within ten (10) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage days after receipt by Lender of an application for such withdrawal and/or release together with an Officer's Certificate, and signed also (as to the following clause (a)) by the Independent Architect, setting forth in substance as follows: (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or Alteration in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects substantially in accordance with any plans and specifications therefor previously filed with Lender under Section 10.2 and that, if applicable, a certificate of occupancy has been issued with respect to such Material Alteration or Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; and (b) that to the knowledge of the certifying Person all amounts which Borrower is or may become liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 7.3 and that lien waivers have been obtained from the general contractor and major subcontractors performing such Material Alterations or Alterations (including any retainages) approved by the Architect or such waivers are not customary and reasonably approved obtainable by Mortgage Lenderprudent managers in the area where the Property is located). (c) For the purposes of this Section 10.3 only, free Alterations and clear Material Alterations shall not include tenant improvement alterations, improvements, demolitions or removals undertaken pursuant to a Lease in which the costs thereof are being fully paid out of Liensfunds held by Lender in the TI and Leasing Reserve Account or the Structural Reserve Account XI. BOOKS AND RECORDS, other than Permitted EncumbrancesFINANCIAL STATEMENTS, REPORTS AND OTHER INFORMATION.

Appears in 1 contract

Samples: Loan and Security Agreement (Maguire Properties Inc)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article XSection 12(c) hereof, no Material Alteration nor any Alteration which when aggregated with all other Alterations (other than Material Alterations) then being undertaken by Mortgage Borrower involves costs estimated in writing (exclusive of Alterations being directly paid for by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine LenderTenants) to be incurred in implementing at the Alterations that exceed Property exceeds the Material Alteration Collateralization ThresholdThreshold Amount, shall be performed by or on behalf of Mortgage Borrower unless Mezzanine Borrower shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Alterations minus the Material Alteration Collateralization or the Alterations in excess of the Threshold Amount (as set forth in the Independent Architect's written estimate referred to above). Mezzanine Borrower In addition to payment or reimbursement from time to time of Borrower's expenses incurred in connection with any Material Alteration or any such Alteration, the amount of such security shall cause Mortgage Borrower be reduced on any given date to deliver the excess of the Independent Architect's written estimate of the then remaining cost to Mortgage Lender complete the Material Alterations or the Alterations (including any security deposited by retainages), free and clear of Liens, other than Permitted Encumbrances over the Master Lessee for any Alteration under the Master LeaseThreshold Amount. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contract%) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)Sections 6(e) and 6(f) hereof, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Independent Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 Sections 6(e) and 6(f) hereof and which are held by Mortgage Lender in accordance with such Section 6.26 hereof. Payment or reimbursement of Mortgage Borrower’s Bxxxxxxx's expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in Sections 6(e) through 6(f) hereof. At any time after substantial completion of any Material Alteration or any such Section 6.2. Any Alteration in respect whereof Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally was deposited pursuant hereto, the whole balance of any Cash and Cash Equivalents so deposited by Lender and then remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn by Borrower and shall have been depositedbe paid by Lender to Borrower, returned to Mortgage Borrower upon the substitution of and any other Cash and Cash Equivalents and/or a Letter of Credit in a lesser amountso deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Borrower, within ten (10) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage days after receipt by Lender of an application for such withdrawal and/or release together with an Officer's Certificate, and signed also (aas to the following clause (i)) by the payment of the costs of such Alteration Independent Architect, setting forth in such amount, free and clear of Liens (i.e., assuming substance as follows: that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or Alteration in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects in accordance with any plans and specifications therefor previously filed with Lender under Section 12(c) hereof and that, if applicable, a certificate of occupancy has been issued with respect to such Material Alteration or Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; and that to the knowledge of the certifying Person all amounts which Borrower is or may become liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 7(c) hereof and that lien waivers have been obtained from the general contractor and major subcontractors performing such Material Alterations or Alterations (including any retainages) approved by the Architect or such waivers are not customary and reasonably approved obtainable by Mortgage Lender, free and clear of Liens, other than Permitted Encumbrancesprudent managers in the area where the Property is located).

Appears in 1 contract

Samples: Secured Indebtedness Agreement (Parkway Properties Inc)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article X, no Material Alteration nor any Alteration which when aggregated with all other Alterations (other than Material Alterations) then being undertaken by Mortgage Borrower involves costs estimated in writing by Master Lessee at any one time (which costs shall be reasonably acceptable to Mezzanine Borrower exclusive of Alterations constituting tenant improvements or decorative work such as painting, wall papering and Mezzanine Lendercarpeting and the replacement of fixtures, furnishings and equipment) to be incurred in implementing exceeds the Alterations that exceed the Material Alteration Collateralization ThresholdThreshold Amount, shall be performed by or on behalf of Mortgage Borrower unless Mezzanine Borrower shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Lender, if requested by Lender, Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Alterations minus the Material Alteration Collateralization or the Alterations in excess of the Threshold Amount (as set forth in the Independent Architect’s written estimate referred to above). Mezzanine Lender shall, within ten (10) Business Days of a written request from Borrower and satisfaction of the requirements set forth in this Section 10.3 release such security to Borrower for payment or reimbursement from time to time of Borrower’s expenses incurred in connection with any Material Alteration or any such Alteration. Borrower shall cause Mortgage Borrower not make a request for disbursement more frequently than once in any calendar month and the total amount of any request shall not be less than $25,000 (except in the case of the final request for disbursement). In addition, the amount of such security shall be reduced from time to deliver time in accordance with the Independent Architect’s written estimate of the cost to Mortgage Lender complete the Material Alteration or the Alterations (including any security deposited by the Master Lessee for any Alteration under the Master Leaseretainages), free and clear of Liens, other than Permitted Encumbrances. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contractaggregate) shall be treated as due and payable and unpaid from part of the date they would be due and payable but for their characterization as subject estimated cost to retainagecomplete any Alteration. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)6.2, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Independent Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 and which are held by Mortgage Lender in accordance with such Section 6.2. Payment or reimbursement of Mortgage Borrower’s expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in such Section 6.2. Any At any time after substantial completion of any Material Alteration or any such Alteration in respect of which Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally was deposited pursuant hereto, the whole balance of any Cash and Cash Equivalents so deposited by Borrower with Lender and then remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn by Borrower and shall have been depositedbe paid by Lender to Borrower, returned to Mortgage Borrower upon the substitution of and any other Cash and Cash Equivalents and/or a Letter of Credit in a lesser amountso deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Borrower and from the lien hereof, within ten (10) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage days after receipt by Lender of an application for such withdrawal and/or release together with a Borrower’s Certificate, and signed also (as to the following clause (a)) by the Independent Architect, setting forth in substance as follows: (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or Alteration in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects substantially in accordance with any plans and specifications therefor previously filed with Lender under Section 10.2 and that, if applicable, a temporary or permanent certificate of occupancy has been issued with respect to such Material Alteration or Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; and (b) that to the knowledge of the certifying Person all amounts which Borrower is or may become liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 7.3 and that lien waivers have been obtained from the general contractor and major subcontractors performing such Material Alterations or Alterations (including any retainages) approved by the Architect or such waivers are not customary and reasonably approved obtainable by Mortgage Lender, free and clear of Liens, other than Permitted Encumbrancesprudent managers in the area where the Property is located).

Appears in 1 contract

Samples: Loan and Security Agreement (Hudson Pacific Properties, Inc.)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article X, no Material Alteration or Alteration which when aggregated with all other Alterations (other than Material Alterations) then being undertaken by Mortgage Borrower involves costs estimated in writing (exclusive of Alterations being directly paid for by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine LenderTenants at the Property) to be incurred in implementing exceeds the Alterations that exceed the Material Alteration Collateralization ThresholdThreshold Amount, shall be performed by or on behalf of Mortgage Borrower unless Mezzanine Borrower shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Material Alteration or the Alterations minus the Material Alteration Collateralization Threshold Amount (as set forth in the Independent Architect’s written estimate referred to above). Mezzanine Lender shall disburse any such Cash and Cash Equivalents to Borrower from time to time to pay for or reimburse Borrower for the cost of the material Alteration or the Alterations. In addition to payment or reimbursement from time to time of Borrower’s expenses incurred in connection with any Material Alteration or any such Alteration, the amount of such security shall cause Mortgage Borrower be reduced on any given date to deliver the Independent Architect’s written estimate of the cost to Mortgage Lender complete the Material Alteration or the Alterations (including any security deposited by the Master Lessee for any Alteration under the Master Leaseretainages), free and clear of Liens, other than Permitted Encumbrances. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contractaggregate) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)6.2, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Independent Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 and which are held by Mortgage Lender in accordance with such Section 6.2. Payment or reimbursement of Mortgage Borrower’s expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in such Section 6.2. Any At any time after substantial completion of any Material Alteration or any such Alteration in respect of which Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally is deposited pursuant hereto, the whole balance of any Cash and Cash Equivalents so deposited by Borrower with Lender and then remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn by Borrower and shall have been depositedbe paid by Lender to Borrower, returned to Mortgage Borrower upon the substitution of and any other Cash and Cash Equivalents and/or a Letter of Credit in a lesser amountso deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Borrower, within ten (10) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage days after receipt by Lender of an application for such withdrawal and/or release together with an Officer’s Certificate, and signed also (as to the following clause (a)) by the Independent Architect, setting forth in substance as follows: (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or Alteration in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects substantially in accordance with any plans and specifications therefor previously filed with Lender under Section 10.2 and that, if applicable, a certificate of occupancy has been issued with respect to such Material Alteration or Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; and (b) that to the knowledge of the certifying Person all amounts which Borrower is or may become liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 7.3 or will be paid out of the disbursement of the Cash and Cash Equivalents, and that partial lien waivers have been obtained from the general contractor and major subcontractors performing such Material Alterations or Alterations (including any retainages) approved by the Architect or such waivers are not customary and reasonably approved obtainable by Mortgage Lenderprudent managers in the area where the Property is located). (c) For the purposes of this Section 10.3 only, free Alterations and clear Material Alterations shall not include tenant improvement alterations, improvements, demolitions or removals undertaken pursuant to a Lease to the extent the costs thereof are being paid out of Liens, other than Permitted Encumbrancesfunds held by Lender in the TI and Leasing Reserve Account.

Appears in 1 contract

Samples: Loan and Security Agreement (Digital Realty Trust, Inc.)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article XSection 12(c) hereof, no Material Alteration nor any Alteration which when aggregated with all other Alterations (other than Material Alterations) then being undertaken by Mortgage Borrower involves costs estimated in writing Grantor (exclusive of Alterations being directly paid for by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine LenderTenants) to be incurred in implementing at the Alterations that exceed Properties exceeds the Material Aggregate Alteration Collateralization ThresholdThreshold Amount, shall be performed by or on behalf of Mortgage Borrower Grantor unless Mezzanine Borrower Grantor shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Beneficiary Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost (exclusive of the Alterations minus costs to be funded from amounts held in any Account) of the Material Alteration Collateralization or the Alterations in excess of the Alteration Threshold Amount (as set forth in the Independent Architect's written estimate referred to above). Mezzanine Borrower In addition to payment or reimbursement from time to time of Grantor's expenses incurred in connection with any Material Alteration or any such Alteration, the amount of such security shall cause Mortgage Borrower be reduced on any given date to deliver the Independent Architect's written estimate of the cost to Mortgage Lender complete the Material Alterations or the Alterations (including any security deposited by the Master Lessee for any Alteration under the Master Leaseretainages), free and clear of Liens, other than Permitted Encumbrances. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contract%) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower Grantor shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)Sections 6(g) and 6(h) hereof, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Independent Architect), less the sum of the amount of any Proceeds which Mortgage Borrower Grantor may be entitled to withdraw pursuant to such Section 6.2 Sections 6(g)and 6(h) hereof and which are held by Mortgage Lender Beneficiary in accordance with such Section 6.26 hereof. Payment or reimbursement of Mortgage Borrower’s Grantor's expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in Sections 6(g) through 6(h) hereof. At any time after substantial completion of any Material Alteration or any such Section 6.2. Any Alteration in respect whereof Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally was deposited pursuant hereto, the whole balance of any Cash and Cash Equivalents so deposited by Beneficiary and then remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn by Grantor and shall have been depositedbe paid by Beneficiary to Grantor, returned to Mortgage Borrower upon the substitution of and any other Cash and Cash Equivalents and/or a Letter of Credit in a lesser amountso deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Grantor, within ten (10) days after receipt by Beneficiary of an application for such withdrawal and/or release together with an Officer's Certificate, and signed also (as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage Lender of the following clause (ai)) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or the Alterations (including any retainages) approved by the Architect and reasonably approved by Mortgage LenderIndependent Architect, free and clear of Liens, other than Permitted Encumbrances.setting forth in substance as follows:

Appears in 1 contract

Samples: Mortgage Agreement (Mark Centers Trust)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article XSection 13, no Material Alteration which when aggregated with all other Alterations or Alteration then being undertaken by Mortgage Borrower involves costs estimated in writing any PropCo Subsidiary (exclusive of Alterations being directly paid for by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine Lender) to be incurred in implementing or Tenants at the Alterations that exceed the Material Alteration Collateralization ThresholdBorrowing Base Property), shall be performed by or on behalf of Mortgage Borrower any PropCo Subsidiary unless Mezzanine Borrower shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender the Administrative Agent Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Alterations minus the Material Alteration Collateralization Threshold (as set forth in or the written estimate referred to above)Alteration. Mezzanine Borrower shall cause Mortgage Borrower to deliver to Mortgage Lender the Administrative Agent any security deposited by the Master Lessee for any Alteration under the Master Lease. In addition to payment or reimbursement from time to time of Borrower’s expenses incurred in connection with any Material Alteration or any such Alteration, the amount of such security shall be reduced on any given date to the Architect’s written estimate of the cost to complete the Material Alteration or the Alteration (including any retainages), free and clear of Liens, other than Permitted Encumbrances. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contract) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)9.2, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 9.2 and which are held by Mortgage Lender the Administrative Agent in accordance with such Section 6.29.2. Payment or reimbursement of Mortgage Borrower’s expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in Section 9.2. At any time after substantial completion of any Material Alteration or any such Section 6.2. Any Alteration in respect of which Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally is deposited pursuant hereto, the whole balance of any Cash and Cash Equivalents so deposited by Borrower with the Administrative Agent and then remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn by Borrower and shall have been depositedbe paid by the Administrative Agent to Borrower, returned to Mortgage Borrower upon the substitution of and any other Cash and Cash Equivalents and/or a Letter of Credit so deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Borrower, within ten (10) days after receipt by the Administrative Agent of an application for such withdrawal and/or release together with an Officer’s Certificate, and signed also (as to the following clause (a)) by the Architect, setting forth in a lesser amount) substance as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage Lender of follows: (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or Alteration in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects substantially in accordance with any plans and specifications therefor previously filed with the Administrative Agent under Section 14.2 and that, if applicable, a certificate of occupancy has been issued with respect to such Material Alteration or Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; and (b) that to the knowledge of the certifying Person all amounts which Borrower or any PropCo Subsidiary is or may become liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 10.3 and that, except to the extent of such contests, lien waivers have been obtained from the general contractor and major subcontractors performing such Material Alterations or Alterations (including any retainages) approved by the Architect or such waivers are not customary and reasonably approved obtainable by Mortgage Lender, free and clear of Liens, other than Permitted Encumbrancesprudent owners in the area where the applicable Borrowing Base Property is located).

Appears in 1 contract

Samples: Credit Agreement (Toys R Us Inc)

Costs of Alteration. Notwithstanding anything to the contrary contained in this Article X, no Material Alteration or Alteration which when aggregated with all other Alterations (other than Material Alterations) then being undertaken by Mortgage Borrower involves costs estimated in writing (exclusive of Alterations being directly paid for by Master Lessee (which costs shall be reasonably acceptable to Mezzanine Borrower and Mezzanine LenderTenants at the Property) to be incurred in implementing exceeds the Alterations that exceed the Material Alteration Collateralization ThresholdThreshold Amount, shall be performed by or on behalf of Mortgage Borrower unless Mezzanine Borrower shall have caused Mortgage Borrower delivered to deliver to Mortgage Lender Cash and Cash Equivalents and/or a Letter of Credit as security in an amount not less than the estimated cost of the Material Alteration or the Alterations minus the Material Alteration Collateralization Threshold Amount (as set forth in the Independent Architect’s written estimate referred to above). Mezzanine Borrower In addition to payment or reimbursement from time to time of Borrower’s expenses incurred in connection with any Material Alteration or any such Alteration, the amount of such security shall cause Mortgage Borrower be reduced on any given date to deliver the Independent Architect’s written estimate of the cost to Mortgage Lender complete the Material Alteration or the Alterations (including any security deposited by the Master Lessee for any Alteration under the Master Leaseretainages), free and clear of Liens, other than Permitted Encumbrances. Costs which are subject to retainage (which in no event shall be less than 5% in the aggregate with respect to each trade contractaggregate) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subject to retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Mortgage Borrower shall be entitled to withdraw Proceeds pursuant to Section 6.2 of the Loan Agreement (Mortgage)6.2, the amount of the Cash and Cash Equivalents and/or Letter of Credit to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration (as estimated by the Independent Architect), less the sum of the amount of any Proceeds which Mortgage Borrower may be entitled to withdraw pursuant to such Section 6.2 and which are held by Mortgage Lender in accordance with such Section 6.2. Payment or reimbursement of Mortgage Borrower’s expenses incurred with respect to any Material Alteration or any such Alteration shall be accomplished upon the terms and conditions specified in such Section 6.2. Any At any time after substantial completion of any Material Alteration or any such Alteration in respect of which Cash and Cash Equivalents and/or Letter of Credit deposited pursuant hereto shall be returned to Mortgage Borrower (or if a Letter of Credit originally is deposited pursuant hereto, the whole balance of any Cash and Cash Equivalents so deposited by Borrower with Lender and then remaining on deposit (together with earnings thereon), as well as all retainages, may be withdrawn by Borrower and shall have been depositedbe paid by Lender to Borrower, returned to Mortgage Borrower upon the substitution of and any other Cash and Cash Equivalents and/or a Letter of Credit in a lesser amountso deposited or delivered shall, to the extent it has not been called upon, reduced or theretofore released, be released to Borrower, within ten (10) as Mortgage Borrower shall provide written evidence, in form reasonably satisfactory to Mortgage days after receipt by Lender of an application for such withdrawal and/or release together with an Officer’s Certificate, and signed also (as to the following clause (a)) by the Independent Architect, setting forth in substance as follows: (a) the payment of the costs of such Alteration in such amount, free and clear of Liens (i.e., assuming that the first costs paid are those in excess of the Material Alteration Collateralization Threshold) or (b) a reduction in the written estimate of the cost to complete the Material Alteration or Alteration in respect of which such Cash and Cash Equivalents and/or a Letter of Credit was deposited has been substantially completed in all material respects substantially in accordance with any plans and specifications therefor previously filed with Lender under Section 10.2 and that, if applicable, a certificate of occupancy has been issued with respect to such Material Alteration or Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; and (b) that to the knowledge of the certifying Person all amounts which Borrower is or may become liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in accordance with Section 7.3 and that lien waivers have been obtained from the general contractor and major subcontractors performing such Material Alterations or Alterations (including any retainages) approved by the Architect or such waivers are not customary and reasonably approved obtainable by Mortgage Lenderprudent managers in the area where the Property is located). For the purposes of this Section 10.3 only, free Alterations and clear Material Alterations shall not include tenant improvement alterations, improvements, demolitions or removals undertaken pursuant to a Lease in which the costs thereof are being fully paid out of Liensfunds held by Lender in the TI and Leasing Reserve Account or Alterations by Bank of America, other than Permitted EncumbrancesN.A. pursuant to the BofA Lease that are permitted to be undertaken by Bank of America, N.A. without the consent of Borrower.

Appears in 1 contract

Samples: Loan and Security Agreement (American Financial Realty Trust)

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