Disbursements from Replacement Reserve Account. (a) Administrative Agent shall disburse to Borrower the Replacement Reserve Funds (or applicable portion thereof) upon satisfaction by Borrower of each of the following conditions: (i) Borrower shall submit a request for payment to Administrative Agent at least ten (10) days prior to the date on which Borrower requests that such payment be made, which request for payment shall specify the Replacements for which payment is requested; (ii) on the date such request is received by Administrative Agent and on the date such payment is to be made, no Event of Default shall be continuing; (iii) such request shall be accompanied by an Officer’s Certificate (A) stating that all Replacements (or, in the case of periodic payments approved by Administrative Agent pursuant to Section 7.3.2(c) below, the applicable portion of such Replacements) at the applicable Individual Property to be funded by the requested disbursement have been or will be completed in good and workmanlike manner and in accordance with all applicable Legal Requirements, such Officer’s Certificate to be accompanied by copies of paid invoices or copies of invoices to be paid, as applicable, in each case with respect to invoices in excess of $25,000 and any licenses, permits or other approvals by any Governmental Authority required in connection with the applicable Replacements (or portion thereof, in the case of approved periodic payments), (B) identifying each contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments) to be funded by the requested disbursement, and (C) stating that each such contractor has been or will have been paid in full upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and such contractor, that each such contractor will be paid in full with the funds to be so disbursed); (iv) if the costs of the applicable Replacements exceed the Reserve Threshold or in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), such request is accompanied by (X) lien waivers or other evidence of payment reasonably satisfactory to Administrative Agent, (Y) at Administrative Agent’s request, a title search for the applicable Individual Property indicating that such Individual Property is free from all Liens not previously approved by Administrative Agent (other than Permitted Encumbrances); (v) such request is accompanied by such other evidence as Administrative Agent shall reasonably request that the Replacements (or portion thereof, in the case of approved periodic payments) at the applicable Individual Property to be funded by the requested disbursement has been or will have been completed by the work related to such disbursement and are paid for or will have been paid for upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), that the same will be paid for upon such disbursement to Borrower); and (vi) if the costs of the applicable Replacements exceed the Reserve Threshold, if requested by Administrative Agent, the applicable Replacements shall be inspected by an independent qualified professional selected by Administrative Agent, at Borrower’s expense, in order to verify that such Replacements (or portion thereof, in the case of approved periodic payments) have been completed. (b) Administrative Agent shall not be required to make disbursements from the Replacement Reserve Account with respect to the Properties (i) more than twice in each calendar month and (ii) unless such requested disbursement is in an amount greater than the Minimum Disbursement Amount (or a lesser amount if the total amount on deposit in the Replacement Reserve Account on the date of the requested disbursement is less than the Minimum Disbursement Amount), in which case only one disbursement of the amount remaining in the Replacement Reserve Account shall be made). (c) If (i) the cost of a Replacement exceeds the Minimum Disbursement Amount, (ii) the contractor performing such Replacement requires periodic payments pursuant to terms of a written contract, and (iii) Administrative Agent has approved in writing in advance (such approval not to be unreasonably withheld) such periodic payments, a request for reimbursement from the Replacement Reserve Account may be made after completion of a portion of the work under such contract, provided that (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the applicable Individual Property and are properly secured or have been installed in the applicable Individual Property, (C) all other conditions to disbursement set forth in this Section 7.3.2 have been satisfied, and (D) funds remaining in the Replacement Reserve Account are, in Administrative Agent’s reasonable judgment, sufficient to complete such Replacement and other contemplated Replacements as and when the same are required to be completed. (d) During the continuance of an Event of Default, Administrative Agent may use the Replacement Reserve Funds (or any portion thereof) to complete any Replacements that are then in progress or otherwise apply the same in accordance with Section 7.9(a) hereof, and such rights shall be in addition to all other rights and remedies provided to Administrative Agent under this Agreement and the other Loan Documents. If Administrative Agent shall apply the Replacement Reserve Funds (or any portion thereof) to complete any Replacements in accordance with the foregoing, (i) Borrower shall indemnify and hold harmless each Indemnified Party from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with any such action taken by Administrative Agent, unless the same are solely due to gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party and (ii) Borrower shall assign to Administrative Agent all rights and claims Borrower may have against all Persons supplying labor or materials in connection with the applicable Replacements (provided, that Administrative Agent may pursue such rights and claims only during such time as an Event of Default is continuing).
Appears in 2 contracts
Samples: Loan Agreement (Excel Trust, L.P.), Loan Agreement (Excel Trust, L.P.)
Disbursements from Replacement Reserve Account. (a) Administrative Agent Provided no Event of Default exists, Lender shall direct the Cash Management Bank to disburse to Borrower from the Replacement Reserve Funds (or applicable portion thereof) Account from time to time, but not more frequently than once in any calendar month, upon satisfaction by Borrower of each of the following conditions:
: (ia) Borrower shall submit a written request for payment to Administrative Agent Lender at least ten five (105) days Business Days prior to the date on which Borrower requests that such payment be made, which request for payment shall specify made and specifies the Replacements for which payment is requested;
(ii) on the date such request is received by Administrative Agent and on the date such payment is Replacement to be made, no Event of Default paid; (b) Lender shall be continuing;
(iii) such request shall be accompanied by have received an Officer’s Certificate (A) stating that all Replacements (or, in the case of periodic payments approved by Administrative Agent pursuant work related to Section 7.3.2(c) below, the applicable portion of such Replacements) at the applicable Individual Property to be funded by the requested disbursement have has been or will be completed in good and workmanlike manner and in accordance with all applicable Legal Requirements, all costs relating to such Officer’s Certificate to be accompanied by copies of paid invoices or copies of invoices to be paid, as applicable, in each case with respect to invoices in excess of $25,000 and any licenses, permits or other approvals by any Governmental Authority required in connection with the applicable Replacements (or portion thereof, in the case of approved periodic payments), (B) identifying each contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments) to be funded by the requested disbursement, and (C) stating that each such contractor has been or will disbursement have been paid in full upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and such contractor, that each such contractor or will be paid in full upon such disbursement, and that Borrower has applied any amounts previously received by it in accordance with this Section for the funds expenses to which specific draws made hereunder relate; (c) Lender shall have received invoices or other reasonably acceptable evidence of the amounts paid or to be so disbursed);
(iv) if the costs of the applicable Replacements exceed the Reserve Threshold or in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), such request is accompanied by (X) lien waivers or other evidence of payment reasonably satisfactory to Administrative Agent, (Y) at Administrative Agent’s request, a title search for the applicable Individual Property indicating that such Individual Property is free paid from all Liens not previously approved by Administrative Agent (other than Permitted Encumbrances);
(v) such request is accompanied by such other evidence as Administrative Agent shall reasonably request that the Replacements (or portion thereof, in the case of approved periodic payments) at the applicable Individual Property to be funded by the requested disbursement has been or will have been completed by the work related to such disbursement and are paid (d) with respect to disbursements for or will have been paid for upon such disbursement (or, Replacements relating to any single Replacement costing in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, excess of $250,000 in the case of approved periodic paymentsaggregate (whether disbursed in a lump sum or multiple installments), that the same will be paid for upon (x) a reasonably satisfactory site inspection, and (y) receipt of lien releases and waivers from any contractors, subcontractors and others with respect to such disbursement to Borrower); and
(vi) if the costs of the applicable Replacements exceed the Reserve Threshold, if requested by Administrative Agent, the applicable Replacements shall be inspected by an independent qualified professional selected by Administrative Agent, at Borrower’s expense, in order to verify that such Replacements (or portion thereof, in the case of approved periodic payments) have been completed.
(b) Administrative Agent amounts. Lender shall not be required to make disbursements from the Replacement Reserve Account with respect to the Properties (iA) more than twice in each calendar once a month and (iiB) unless such requested disbursement is in an amount greater than the Minimum Disbursement Amount $25,000 (or a lesser amount if the total amount on deposit in the Replacement Reserve Account on the date of the requested disbursement is less than the Minimum Disbursement Amount)$25,000, in which case only one disbursement of the amount remaining in the Replacement Reserve Account account shall be made).
(c) If (i) the cost of a Replacement exceeds the Minimum Disbursement Amount, (ii) the contractor performing and such Replacement requires periodic payments pursuant to terms of a written contract, and (iii) Administrative Agent has approved in writing in advance (such approval not to be unreasonably withheld) such periodic payments, a request for reimbursement from the Replacement Reserve Account may disbursement shall be made after completion only upon satisfaction of a portion of the work under such contract, provided that (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the applicable Individual Property and are properly secured or have been installed in the applicable Individual Property, (C) all other conditions to disbursement set forth each condition contained in this Section 7.3.2 have been satisfied, and (D) funds remaining in the Replacement Reserve Account are, in Administrative Agent’s reasonable judgment, sufficient to complete such Replacement and other contemplated Replacements as and when the same are required to be completed7.4.2.
(d) During the continuance of an Event of Default, Administrative Agent may use the Replacement Reserve Funds (or any portion thereof) to complete any Replacements that are then in progress or otherwise apply the same in accordance with Section 7.9(a) hereof, and such rights shall be in addition to all other rights and remedies provided to Administrative Agent under this Agreement and the other Loan Documents. If Administrative Agent shall apply the Replacement Reserve Funds (or any portion thereof) to complete any Replacements in accordance with the foregoing, (i) Borrower shall indemnify and hold harmless each Indemnified Party from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with any such action taken by Administrative Agent, unless the same are solely due to gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party and (ii) Borrower shall assign to Administrative Agent all rights and claims Borrower may have against all Persons supplying labor or materials in connection with the applicable Replacements (provided, that Administrative Agent may pursue such rights and claims only during such time as an Event of Default is continuing).
Appears in 2 contracts
Samples: Loan Agreement (Lineage, Inc.), Loan Agreement (Lineage, Inc.)
Disbursements from Replacement Reserve Account. (a) Administrative Agent Lender shall disburse to Borrower make disbursements from the Replacement Reserve Funds Account as requested by Borrower to pay Replacement Expenditures in accordance with the Approved Annual Budget no more frequently than once in any thirty (or applicable portion thereof30) day period of no less than $15,000 upon satisfaction by Borrower of each of the following conditions:
: (ia) Borrower shall submit a written request for payment to Administrative Agent Lender at least ten five (105) days Business Days prior to the date on which Borrower requests that such payment be mademade and specifies the Replacement Expenditure to be paid, which request for payment shall specify the Replacements for which payment is requested;
(iib) on the date such request is received by Administrative Agent and on the date such payment is to be made, no Event of Default shall be continuing;
exist and remain uncured, (iiic) such request Lender shall be accompanied by have received an Officer’s Certificate (Ai) stating that that, to Borrower’s Knowledge, all Replacements (or, in the case of periodic payments approved by Administrative Agent pursuant to Section 7.3.2(c) below, the applicable portion of such Replacements) at the applicable Individual Property Replacement Expenditures to be funded by the requested disbursement have been or will be completed performed in good and workmanlike manner and in accordance with all applicable Legal Requirementsbuilding codes, such Officer’s Certificate to be accompanied by copies of paid invoices or copies of invoices to be paid, as applicable, rules and regulations in each case with respect to invoices in excess of $25,000 and any licenses, permits or other approvals by any Governmental Authority required in connection with the applicable Replacements (or portion thereof, in the case of approved periodic payments)all material respects, (Bii) identifying each contractor Person that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments) Replacement Expenditure performed at such Individual Property to be funded by the requested disbursement, and (Ciii) stating that each such contractor Person has been or will have been be paid in full upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks amounts then due and payable to Borrower and such contractor, that each such contractor will be paid in full with the funds to be so disbursed);
(iv) if the costs of the applicable Replacements exceed the Reserve Threshold or in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor Person in connection with such Replacement Expenditure with the Replacements (or portion thereof, in the case proceeds of approved periodic payments)such disbursement, such request is Officer’s Certificate to be accompanied by (Xa) invoices for items of work or materials in excess of $25,000 and (b) lien waivers for items of work or other evidence materials in excess of payment reasonably satisfactory to Administrative Agent, (Y) at Administrative Agent’s request, $25,000. Borrower shall not make a title search request for disbursement from the applicable Individual Property indicating that such Individual Property is free from all Liens not previously approved by Administrative Agent (other Replacement Reserve Account more frequently than Permitted Encumbrances);
(v) such request is accompanied by such other evidence as Administrative Agent shall reasonably request that the Replacements (or portion thereof, in the case of approved periodic payments) at the applicable Individual Property to be funded by the requested disbursement has been or will have been completed by the work related to such disbursement and are paid for or will have been paid for upon such disbursement (or, once in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower calendar month and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), that the same will be paid for upon such disbursement to Borrower); and
(vi) if the costs of the applicable Replacements exceed the Reserve Threshold, if requested by Administrative Agent, the applicable Replacements shall be inspected by an independent qualified professional selected by Administrative Agent, at Borrower’s expense, in order to verify that such Replacements (or portion thereof, in the case of approved periodic payments) have been completed.
(b) Administrative Agent Lender shall not be required to make disbursements from the Replacement Reserve Account with respect to the Properties (i) more than twice in each calendar month and (ii) any Individual Property unless such requested disbursement is in an amount greater than the Minimum Disbursement Amount Twenty Five Thousand Dollars ($25,000) (or a lesser amount if the total amount on deposit in the Replacement Reserve Account on the date of the requested disbursement is less than the Minimum Disbursement AmountTwenty Five Thousand Dollars ($25,000), in which case only one disbursement of the amount remaining in the Replacement Reserve Account account shall be made).
(c) If (i) and such disbursement shall be made only upon satisfaction of each condition contained in this Section 7.2.2. Lender may require an inspection of the cost Property at Borrower’s expense prior to making a monthly disbursement in order to verify completion of a Replacement exceeds replacements and repairs of items in excess of $250,000 with respect to an Individual Property in the Minimum Disbursement Amount, (ii) the contractor performing such Replacement requires periodic payments pursuant to terms of a written contract, and (iii) Administrative Agent has approved in writing in advance (such approval not to be unreasonably withheld) such periodic payments, a request aggregate for which reimbursement is sought. Lender shall make disbursements from the Replacement Reserve Account may be made after completion of a portion to pay Borrower only for the costs of the work under such contract, provided that (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at Replacement Expenditures. Lender shall not be obligated to make disbursements from the applicable Individual Property and are properly secured or have been installed in the applicable Individual Property, (C) all other conditions to disbursement set forth in this Section 7.3.2 have been satisfied, and (D) funds remaining in the Replacement Reserve Account are, in Administrative Agent’s reasonable judgment, sufficient to complete such Replacement and other contemplated Replacements as and when the same reimburse Borrower for costs which are required to be completedreimbursed from the Required Repairs Reserve Fund.
(d) During the continuance of an Event of Default, Administrative Agent may use the Replacement Reserve Funds (or any portion thereof) to complete any Replacements that are then in progress or otherwise apply the same in accordance with Section 7.9(a) hereof, and such rights shall be in addition to all other rights and remedies provided to Administrative Agent under this Agreement and the other Loan Documents. If Administrative Agent shall apply the Replacement Reserve Funds (or any portion thereof) to complete any Replacements in accordance with the foregoing, (i) Borrower shall indemnify and hold harmless each Indemnified Party from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with any such action taken by Administrative Agent, unless the same are solely due to gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party and (ii) Borrower shall assign to Administrative Agent all rights and claims Borrower may have against all Persons supplying labor or materials in connection with the applicable Replacements (provided, that Administrative Agent may pursue such rights and claims only during such time as an Event of Default is continuing).
Appears in 2 contracts
Samples: Loan Agreement (BRE Select Hotels Corp), Mezzanine Loan Agreement (BRE Select Hotels Corp)
Disbursements from Replacement Reserve Account. (a) Administrative Agent Lender shall disburse to Borrower the Replacement Reserve Funds (or applicable portion thereof) Fund from the Replacement Reserve Account from time to time upon satisfaction by Borrower Borrower’s of each of the following conditions:
(ia) Borrower shall submit a written request for payment to Administrative Agent Lender at least ten (10) days prior to the date on which Borrower requests that such payment be made, which request for payment shall specify made and specifying the Replacements for which payment is requested;
to be paid, (iib) on the date such request is received by Administrative Agent Lender and on the date such payment is to be made, no Default or Event of Default shall be continuing;
exist and remain uncured, (iiic) such request Lender shall be accompanied by have received an Officer’s Officers’ Certificate (Ai) stating that all Replacements (or, in or the case of periodic payments approved by Administrative Agent pursuant to Section 7.3.2(c) below, the applicable portion of such Replacementsthereof) at the applicable Individual Property to be funded by the requested disbursement have been or will be completed in good and workmanlike manner and and, to Borrower’s knowledge, in accordance with all applicable Legal RequirementsRequirements and Environmental Laws, such Officer’s Certificate certificate to be accompanied by copies a copy of paid invoices or copies of invoices to be paidany license, as applicable, in each case with respect to invoices in excess of $25,000 and any licenses, permits permit or other approvals approval by any Governmental Authority required in connection with to commence and/or complete the applicable Replacements (or portion thereof, in the case of approved periodic payments)Replacements, (Bii) identifying each contractor Person that supplied materials or labor in connection with the Replacements (or portion thereof, in performed at such Individual Property with respect to the case of approved periodic payments) reimbursement to be funded by the requested disbursement, and (Ciii) stating that each such contractor Person has been or will have been paid in full upon full, such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and such contractor, that each such contractor will be paid in full with the funds Officers’ Certificate to be so disbursed);
(iv) if the costs of the applicable Replacements exceed the Reserve Threshold or in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), such request is accompanied by (X) lien waivers or other evidence of payment reasonably satisfactory to Administrative AgentLender, (Yd) at Administrative AgentLender’s requestoption, a title search for the applicable such Individual Property indicating that such Individual Property is free from all Liens Liens, claims and other encumbrances not previously approved by Administrative Agent Lender, and (other than Permitted Encumbrances);
(ve) such request is accompanied by Lender shall have received such other evidence as Administrative Agent Lender shall reasonably request that the Replacements (or portion the applicable portions thereof, in the case of approved periodic payments) at the applicable such Individual Property to be funded by the requested disbursement has been or will have been completed by the work related to such disbursement in a good and workmanlike manner and are paid for or will have been paid for upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), that the same will be paid for upon such disbursement to Borrower); and
(vi) if the costs of the applicable Replacements exceed the Reserve Threshold, if requested by Administrative Agent, the applicable Replacements shall be inspected by an independent qualified professional selected by Administrative Agent, at Borrower’s expense, in order to verify that such Replacements (or portion thereof, in the case of approved periodic payments) have been completed.
(b) Administrative Agent . Lender shall not be required to make disbursements from the Replacement Reserve Account with respect to the Properties (i) more than twice in each calendar month and (ii) unless such requested disbursement is in an amount greater than the Minimum Disbursement Amount $25,000 (or a lesser amount if the total amount on deposit in the Replacement Reserve Account on the date of the requested disbursement is less than the Minimum Disbursement Amount)$25,000, in which case only one disbursement of the amount remaining in the Replacement Reserve Account account shall be made).
(c) If (i) the cost of a Replacement exceeds the Minimum Disbursement Amount, (ii) the contractor performing such Replacement requires periodic payments pursuant . Lender shall not be obligated to terms of a written contract, and (iii) Administrative Agent has approved in writing in advance (such approval not to be unreasonably withheld) such periodic payments, a request for reimbursement make disbursements from the Replacement Reserve Account may be made after completion of a portion with respect to an Individual Property in excess of the work under amount allocated for such contract, provided that (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the applicable Individual Property and are properly secured or have been installed in the applicable Individual Property, (C) all other conditions to disbursement set forth in this Section 7.3.2 have been satisfied, and (D) funds remaining in the Replacement Reserve Account are, in Administrative Agent’s reasonable judgment, sufficient to complete such Replacement and other contemplated Replacements as and when the same are required to be completed.
(d) During the continuance of an Event of Default, Administrative Agent may use the Replacement Reserve Funds (or any portion thereof) to complete any Replacements that are then in progress or otherwise apply the same in accordance with Section 7.9(a) hereof, and such rights shall be in addition to all other rights and remedies provided to Administrative Agent under this Agreement and the other Loan Documents. If Administrative Agent shall apply the Replacement Reserve Funds (or any portion thereof) to complete any Replacements in accordance with the foregoing, (i) Borrower shall indemnify and hold harmless each Indemnified Party from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with any such action taken by Administrative Agent, unless the same are solely due to gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party and (ii) Borrower shall assign to Administrative Agent all rights and claims Borrower may have against all Persons supplying labor or materials in connection with the applicable Replacements (provided, that Administrative Agent may pursue such rights and claims only during such time as an Event of Default is continuing).
Appears in 2 contracts
Samples: Loan Agreement (Spirit Finance Corp), Loan Agreement (Spirit Finance Corp)
Disbursements from Replacement Reserve Account. (a) Administrative Agent Lender shall disburse to Borrower make disbursements from the Replacement Reserve Funds (or applicable portion thereof) for the cost of Replacements incurred by Borrowers upon satisfaction by Borrower Borrowers of each of the following conditions:
conditions with respect to each such disbursement: (i) Borrower Borrowers shall submit a Lender’s standard form of draw request for payment to Administrative Agent Lender at least ten (10) days Business Days prior to the date on which Borrower requests that Borrowers request such payment be made, which request for payment shall specify the Replacements to be paid and shall be accompanied by copies of paid invoices for which payment is the amounts requested;
; (ii) on the date such request is received by Administrative Agent Lender and on the date such payment is to be made, no Default or Event of Default shall be continuing;
exist and remain uncured; and (iii) such request Lender shall be accompanied by have received (1) an Officer’s Certificate from Borrowers (A) stating that the items to be funded by the requested disbursement are Replacements, and a description thereof, (B) stating that all Replacements (or, in the case of periodic payments approved by Administrative Agent pursuant to Section 7.3.2(c) below, the applicable portion of such Replacements) at the applicable Individual Property to be funded by the requested disbursement have been or will be completed in a good and workmanlike manner and in accordance with all applicable Legal Requirements, such Officer’s Certificate to be accompanied by copies of paid invoices or copies of invoices to be paid, as applicable, in each case with respect to invoices in excess of $25,000 and any licenses, permits or other approvals by any Governmental Authority required in connection with the applicable Replacements (or portion thereof, in the case of approved periodic payments), (BC) identifying each contractor Person that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments) to be funded by the requested disbursement, and (CD) stating that each such contractor Person has been paid in full or will have been be paid in full upon such disbursement, for work completed and/or materials furnished to date, (E) stating that the portion of the Replacements to be funded under such disbursement has not been funded under a prior disbursement, (orF) stating that all previous disbursements of Replacement Reserve Funds have been used to pay the previously identified Replacements, in any case in which Borrower has requested and (G) stating that Administrative Agent issue joint checks payable all outstanding trade payables relating to Borrower and such contractor, that each such contractor will the Replacements (other than those to be paid from the requested disbursement) have been paid in full with the funds to be so disbursed);
full, (iv2) if the costs a copy of the applicable Replacements exceed the Reserve Threshold any license, permit or in other approval by any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor Governmental Authority required in connection with the Replacements and not previously delivered to Lender, (or portion thereof3) if required by Lender for requests in excess of $10,000 for a single item, in the case of approved periodic payments), such request is accompanied by (X) lien waivers or other evidence of payment reasonably satisfactory to Administrative AgentLender and releases from all parties furnishing materials and/or services in connection with the requested payment, (Y4) at Administrative AgentLender’s requestoption, a title search for the applicable Individual any Property at which Replacements were made indicating that such Individual Property is free from all Liens not Liens, claims and other encumbrances other than Permitted Encumbrances and those previously approved by Administrative Agent Lender, and (other than Permitted Encumbrances);
(v5) such request is accompanied by such other evidence as Administrative Agent Lender shall reasonably request to demonstrate that the Replacements (or portion thereof, in the case of approved periodic payments) at the applicable Individual Property to be funded by the requested disbursement has been or will have been completed by the work related to such disbursement and are paid for or will have been paid for upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), that the same will be paid for upon such disbursement to Borrower); and
(vi) if the costs of the applicable Replacements exceed the Reserve Threshold, if Borrowers. Lender shall make disbursements as requested by Administrative Agent, the Borrowers twice per month in respect of all applicable Properties in increments of no less than $5,000 per disbursement. Lender may require an inspection of any Property at which Replacements shall be inspected by an independent qualified professional selected by Administrative Agent, were made at Borrower’s expense, Borrowers’ expense prior to making a monthly disbursement in order to verify that such Replacements (or portion thereof, in the case of approved periodic payments) have been completed.
(b) Administrative Agent shall not be required to make disbursements from the Replacement Reserve Account with respect to the Properties (i) more than twice in each calendar month and (ii) unless such requested disbursement is in an amount greater than the Minimum Disbursement Amount (or a lesser amount if the total amount on deposit in the Replacement Reserve Account on the date of the requested disbursement is less than the Minimum Disbursement Amount), in which case only one disbursement of the amount remaining in the Replacement Reserve Account shall be made).
(c) If (i) the cost of a Replacement exceeds the Minimum Disbursement Amount, (ii) the contractor performing such Replacement requires periodic payments pursuant to terms of a written contract, and (iii) Administrative Agent has approved in writing in advance (such approval not to be unreasonably withheld) such periodic payments, a request for reimbursement from the Replacement Reserve Account may be made after completion of a portion improvements in excess of the work under such contract, provided that (A) such contract requires payment upon completion of such portion of the work, (B) the materials $25,000 for which the request reimbursement is made are on site at the applicable Individual Property and are properly secured or have been installed in the applicable Individual Property, (C) all other conditions sought relating to disbursement set forth in this Section 7.3.2 have been satisfied, and (D) funds remaining in the Replacement Reserve Account are, in Administrative Agent’s reasonable judgment, sufficient to complete such Replacement and other contemplated Replacements as and when the same are required to be completedProperties.
(d) During the continuance of an Event of Default, Administrative Agent may use the Replacement Reserve Funds (or any portion thereof) to complete any Replacements that are then in progress or otherwise apply the same in accordance with Section 7.9(a) hereof, and such rights shall be in addition to all other rights and remedies provided to Administrative Agent under this Agreement and the other Loan Documents. If Administrative Agent shall apply the Replacement Reserve Funds (or any portion thereof) to complete any Replacements in accordance with the foregoing, (i) Borrower shall indemnify and hold harmless each Indemnified Party from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with any such action taken by Administrative Agent, unless the same are solely due to gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party and (ii) Borrower shall assign to Administrative Agent all rights and claims Borrower may have against all Persons supplying labor or materials in connection with the applicable Replacements (provided, that Administrative Agent may pursue such rights and claims only during such time as an Event of Default is continuing).
Appears in 2 contracts
Samples: Loan Agreement (Cole Credit Property Trust Inc), Loan Agreement (Cole Credit Property Trust III, Inc.)
Disbursements from Replacement Reserve Account. (a) Administrative Agent shall disburse to Borrower the Replacement Reserve Funds (or applicable portion thereof) upon satisfaction by Borrower of each of the following conditions:
(i) Borrower shall submit a request for payment to Administrative Agent at least ten (10) days prior to the date on which Borrower requests that such payment be made, which request for payment shall specify the Replacements for which payment is requested;
(ii) on the date such request is received by Administrative Agent and on the date such payment is to be made, So long as no Event of Default shall have occurred and be continuing;
(iii) such request , Lender shall be accompanied by an Officer’s Certificate (A) stating that all Replacements (or, in the case of periodic payments approved by Administrative Agent pursuant to Section 7.3.2(c) below, the applicable portion of such Replacements) at the applicable Individual Property to be funded by the requested disbursement have been or will be completed in good and workmanlike manner and in accordance with all applicable Legal Requirements, such Officer’s Certificate to be accompanied by copies of paid invoices or copies of invoices to be paid, as applicable, in each case with respect to invoices in excess of $25,000 and any licenses, permits or other approvals by any Governmental Authority required in connection with the applicable Replacements (or portion thereof, in the case of approved periodic payments), (B) identifying each contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments) to be funded by the requested disbursement, and (C) stating that each such contractor has been or will have been paid in full upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and such contractor, that each such contractor will be paid in full with the funds to be so disbursed);
(iv) if the costs of the applicable Replacements exceed the Reserve Threshold or in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), such request is accompanied by (X) lien waivers or other evidence of payment reasonably satisfactory to Administrative Agent, (Y) at Administrative Agent’s request, a title search for the applicable Individual Property indicating that such Individual Property is free from all Liens not previously approved by Administrative Agent (other than Permitted Encumbrances);
(v) such request is accompanied by such other evidence as Administrative Agent shall reasonably request that the Replacements (or portion thereof, in the case of approved periodic payments) at the applicable Individual Property to be funded by the requested disbursement has been or will have been completed by the work related to such disbursement and are paid for or will have been paid for upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), that the same will be paid for upon such disbursement to Borrower); and
(vi) if the costs of the applicable Replacements exceed the Reserve Threshold, if requested by Administrative Agent, the applicable Replacements shall be inspected by an independent qualified professional selected by Administrative Agent, at Borrower’s expense, in order to verify that such Replacements (or portion thereof, in the case of approved periodic payments) have been completed.
(b) Administrative Agent shall not be required to make disbursements from the Replacement Reserve Account with respect to the Properties Fund as requested by Borrowers and reasonably approved by Lender, which approval shall not be unreasonably conditioned, withheld or delayed, no more frequently than once in any thirty (i30) more day period and of no less than twice in each calendar month and Five Thousand Dollars (ii$5,000) unless such requested per disbursement is in an amount greater than the Minimum Disbursement Amount (or a lesser amount if the total amount on deposit in the Replacement Reserve Account on the date of the requested disbursement at such time is less than the Minimum Disbursement AmountFive Thousand Dollars ($5,000)), upon delivery by Borrowers of Lender’s or Servicer’s standard form of draw request specifying the Replacements to be paid for on a Property-by-Property basis and accompanied by copies of paid invoices for or invoices to be paid with the amounts requested and, if required by Lender for requests in which case only one disbursement excess of One Hundred Seventy-Five Thousand Dollars ($175,000) for a single item, lien waivers and releases from all parties furnishing materials and/or services in connection with the requested payment. Lender may require an inspection of the amount remaining applicable Property at Borrowers’ expense prior to making a monthly disbursement in the Replacement Reserve Account order to verify completion of replacements and repairs of items in excess of Two Hundred Thousand Dollars ($200,000) for which reimbursement is sought. Lender shall be made).
(c) If (i) the cost of a Replacement exceeds the Minimum Disbursement Amount, (ii) the contractor performing such Replacement requires periodic payments pursuant to terms of a written contract, and (iii) Administrative Agent has approved in writing in advance (such approval not to be unreasonably withheld) such periodic payments, a request for reimbursement cause any disbursement from the Replacement Reserve Account may Fund to be made within five (5) Business Days after completion receipt of a portion of the work under such contract, Borrowers’ request and all required documentation provided that (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the applicable Individual Property and are properly secured or have been installed in the applicable Individual Property, (C) all other conditions to disbursement set forth in this Section 7.3.2 have been satisfied, and (D) funds remaining in the Replacement Reserve Account are, in Administrative Agent’s reasonable judgment, sufficient to complete such Replacement and other contemplated Replacements as and when the same are required to be completedreasonably approved by Lender.
(d) During the continuance of an Event of Default, Administrative Agent may use the Replacement Reserve Funds (or any portion thereof) to complete any Replacements that are then in progress or otherwise apply the same in accordance with Section 7.9(a) hereof, and such rights shall be in addition to all other rights and remedies provided to Administrative Agent under this Agreement and the other Loan Documents. If Administrative Agent shall apply the Replacement Reserve Funds (or any portion thereof) to complete any Replacements in accordance with the foregoing, (i) Borrower shall indemnify and hold harmless each Indemnified Party from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with any such action taken by Administrative Agent, unless the same are solely due to gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party and (ii) Borrower shall assign to Administrative Agent all rights and claims Borrower may have against all Persons supplying labor or materials in connection with the applicable Replacements (provided, that Administrative Agent may pursue such rights and claims only during such time as an Event of Default is continuing).
Appears in 2 contracts
Samples: Loan Agreement (Bref Hr, LLC), Loan Agreement (Hard Rock Hotel Holdings, LLC)
Disbursements from Replacement Reserve Account. (a) Administrative Agent shall disburse to Borrower the If such Replacement Reserve Funds (or applicable portion thereof) upon satisfaction by Borrower of each of the following conditions:
(i) Borrower Fund is required, Lender shall submit a request for payment to Administrative Agent at least ten (10) days prior to the date on which Borrower requests that such payment be made, which request for payment shall specify the Replacements for which payment is requested;
(ii) on the date such request is received by Administrative Agent and on the date such payment is to be made, no Event of Default shall be continuing;
(iii) such request shall be accompanied by an Officer’s Certificate (A) stating that all Replacements (or, in the case of periodic payments approved by Administrative Agent pursuant to Section 7.3.2(c) below, the applicable portion of such Replacements) at the applicable Individual Property to be funded by the requested disbursement have been or will be completed in good and workmanlike manner and in accordance with all applicable Legal Requirements, such Officer’s Certificate to be accompanied by copies of paid invoices or copies of invoices to be paid, as applicable, in each case with respect to invoices in excess of $25,000 and any licenses, permits or other approvals by any Governmental Authority required in connection with the applicable Replacements (or portion thereof, in the case of approved periodic payments), (B) identifying each contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments) to be funded by the requested disbursement, and (C) stating that each such contractor has been or will have been paid in full upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and such contractor, that each such contractor will be paid in full with the funds to be so disbursed);
(iv) if the costs of the applicable Replacements exceed the Reserve Threshold or in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), such request is accompanied by (X) lien waivers or other evidence of payment reasonably satisfactory to Administrative Agent, (Y) at Administrative Agent’s request, a title search for the applicable Individual Property indicating that such Individual Property is free from all Liens not previously approved by Administrative Agent (other than Permitted Encumbrances);
(v) such request is accompanied by such other evidence as Administrative Agent shall reasonably request that the Replacements (or portion thereof, in the case of approved periodic payments) at the applicable Individual Property to be funded by the requested disbursement has been or will have been completed by the work related to such disbursement and are paid for or will have been paid for upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), that the same will be paid for upon such disbursement to Borrower); and
(vi) if the costs of the applicable Replacements exceed the Reserve Threshold, if requested by Administrative Agent, the applicable Replacements shall be inspected by an independent qualified professional selected by Administrative Agent, at Borrower’s expense, in order to verify that such Replacements (or portion thereof, in the case of approved periodic payments) have been completed.
(b) Administrative Agent shall not be required to make disbursements from the Replacement Reserve Account Fund as requested by Borrower or Manager, and reasonably approved by Lender, which approval shall not be unreasonably conditioned, withheld or delayed, no more frequently than once in any thirty (30) day period of no less than Five Thousand Dollars ($5,000) upon delivery by Borrower or Manager of Lender’s standard form of draw request accompanied by information of the type set forth on the sample reserve disbursement request schedule attached hereto as Schedule VII, copies of paid invoices for the amounts requested (with respect to requests in excess of Fifty Thousand Dollars ($50,000) for a single item) and, if required by Lender for requests in excess of One Hundred Thousand Dollars ($100,000) for a single item, lien waivers and releases from all parties furnishing materials and/or services in connection with the Properties requested payment. Lender may require an inspection of the Property at Borrower’s expense prior to making a monthly disbursement in order to verify completion of replacements and repairs of items in excess of Two Hundred Fifty Thousand Dollars (i$250,000) more than twice in each calendar month for which reimbursement is sought. Lender shall cause the disbursement of the applicable Replacement Reserve Funds within five (5) Business Days after receipt of Borrower’s or Manager’s request and (ii) unless such requested all required documentation. Notwithstanding the foregoing, Lender’s approval of any disbursement is in an amount greater than the Minimum Disbursement Amount (or a lesser amount if the total amount on deposit in from the Replacement Reserve Account on the date Fund shall not be required and none of the requested foregoing conditions shall be applicable if (a) the Replacement for which such disbursement is less than the Minimum Disbursement Amount), in which case only one disbursement of the amount remaining sought is set forth in the Replacement Reserve Account shall be made).
Annual Budget, as approved by Lender, if and to the extent, required hereunder and (c) If (ib) the cost of a Replacement exceeds the Minimum Disbursement Amount, (ii) the contractor performing such Replacement requires periodic payments pursuant does not cause such Annual Budget, as a whole, to terms of a written contract, and deviate by more than five percent (iii) Administrative Agent has approved in writing in advance (such approval not to be unreasonably withheld) such periodic payments, a request for reimbursement from the Replacement Reserve Account may be made after completion of a portion of the work under such contract, provided that (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the applicable Individual Property and are properly secured or have been installed in the applicable Individual Property, (C) all other conditions to disbursement set forth in this Section 7.3.2 have been satisfied, and (D) funds remaining in the Replacement Reserve Account are, in Administrative Agent’s reasonable judgment, sufficient to complete such Replacement and other contemplated Replacements as and when the same are required to be completed.
(d) During the continuance of an Event of Default, Administrative Agent may use the Replacement Reserve Funds (or any portion thereof) to complete any Replacements that are then in progress or otherwise apply the same in accordance with Section 7.9(a) hereof, and such rights shall be in addition to all other rights and remedies provided to Administrative Agent under this Agreement and the other Loan Documents. If Administrative Agent shall apply the Replacement Reserve Funds (or any portion thereof) to complete any Replacements in accordance with the foregoing, (i) Borrower shall indemnify and hold harmless each Indemnified Party from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with any such action taken by Administrative Agent, unless the same are solely due to gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party and (ii) Borrower shall assign to Administrative Agent all rights and claims Borrower may have against all Persons supplying labor or materials in connection with the applicable Replacements (provided, that Administrative Agent may pursue such rights and claims only during such time as an Event of Default is continuing5%).
Appears in 2 contracts
Samples: Loan Agreement (FelCor Lodging Trust Inc), Loan Agreement (FelCor Lodging Trust Inc)
Disbursements from Replacement Reserve Account. (a) Administrative Agent shall disburse to Borrower the Replacement Reserve Funds from the Replacement Reserve Account from time to time, but not more frequently than once in any thirty (or applicable portion thereof30) day period, upon satisfaction by Borrower of each of the following conditions:
: (ia) Borrower shall submit a written request for payment to Administrative Agent at least ten thirty (1030) days prior to the date on which Borrower requests that such payment be made, which request for payment shall specify made and specifies the Replacements for which payment is requested;
to be paid, (iib) on the date such request is received by Administrative Agent and on the date such payment is to be made, no Event of Default shall be continuing;
exist and remain uncured, (iiic) such request Administrative Agent shall be accompanied by have received an Officer’s Certificate (Ai) stating that all Replacements (or, in the case of periodic payments approved by Administrative Agent pursuant to Section 7.3.2(c) below, the applicable portion of such Replacements) at the applicable Individual Property to be funded by the requested disbursement have been or will be completed in good and workmanlike manner and in accordance with all applicable Legal Requirementsfederal, such Officer’s Certificate to be accompanied by copies of paid invoices or copies of invoices to be paidstate and local laws, as applicable, in each case with respect to invoices in excess of $25,000 rules and any licenses, permits or other approvals by any Governmental Authority required in connection with the applicable Replacements (or portion thereof, in the case of approved periodic payments)regulations, (Bii) identifying each contractor Person that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments) to be funded by the requested disbursement, disbursement and (Ciii) stating that each such contractor Person has been paid in full or will have been be paid in full upon such disbursement (ordisbursement, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and such contractor, that each such contractor will be paid in full with the funds Officer’s Certificate to be so disbursed);
(iv) if the costs of the applicable Replacements exceed the Reserve Threshold or in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), such request is accompanied by (X) lien waivers or other evidence of payment reasonably satisfactory to Administrative Agent, (Yd) at Administrative Agent’s requestoption, Borrower shall furnish Administrative Agent with a title search for the applicable Individual Property indicating that such Individual the Property is free from all Liens not previously approved by Administrative Agent (Liens, claims and other encumbrances other than Permitted Encumbrances);
Encumbrances and other exceptions to title specifically set forth in the Title Insurance Policy, (ve) Borrower shall furnish Administrative Agent with a certificate, qualified to the best of knowledge, reaffirming all representations and warranties of Borrower set forth in this Agreement (or indicating how such have changed) and in the other Loan Documents as of the date of the written request is accompanied by for payment of the Replacement Reserve, and (f) Administrative Agent shall have received such other evidence as Administrative Agent shall reasonably request that the Replacements (or portion thereof, in the case of approved periodic payments) at the applicable Individual Property to be funded by the requested disbursement has been or will have been completed by the work related to such disbursement and are paid for or will have been paid for upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), that the same will be paid for upon such disbursement to Borrower); and
(vi) if the costs of the applicable Replacements exceed the Reserve Threshold, if requested by Administrative Agent, the applicable Replacements shall be inspected by an independent qualified professional selected by Administrative Agent, at Borrower’s expense, in order to verify that such Replacements (or portion thereof, in the case of approved periodic payments) have been completed.
(b) request. Administrative Agent shall not be required to make disbursements from the Replacement Reserve Account with respect to the Properties (i) more than twice in each calendar month and (ii) unless such requested disbursement is in an amount greater than the Minimum Disbursement Amount $10,000 (or a lesser amount if the total amount on deposit in the Replacement Reserve Account on the date of the requested disbursement is less than the Minimum Disbursement Amount)$10,000, in which case only one disbursement of the amount remaining in the Replacement Reserve Account account shall be made).
(c) If (i) the cost of a Replacement exceeds the Minimum Disbursement Amount, (ii) the contractor performing and such Replacement requires periodic payments pursuant to terms of a written contract, and (iii) Administrative Agent has approved in writing in advance (such approval not to be unreasonably withheld) such periodic payments, a request for reimbursement from the Replacement Reserve Account may disbursement shall be made after completion only upon satisfaction of a portion of the work under such contract, provided that (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the applicable Individual Property and are properly secured or have been installed in the applicable Individual Property, (C) all other conditions to disbursement set forth each condition contained in this Section 7.3.2 have been satisfied, and (D) funds remaining in the Replacement Reserve Account are, in Administrative Agent’s reasonable judgment, sufficient to complete such Replacement and other contemplated Replacements as and when the same are required to be completed17.4.
(d) During the continuance of an Event of Default, Administrative Agent may use the Replacement Reserve Funds (or any portion thereof) to complete any Replacements that are then in progress or otherwise apply the same in accordance with Section 7.9(a) hereof, and such rights shall be in addition to all other rights and remedies provided to Administrative Agent under this Agreement and the other Loan Documents. If Administrative Agent shall apply the Replacement Reserve Funds (or any portion thereof) to complete any Replacements in accordance with the foregoing, (i) Borrower shall indemnify and hold harmless each Indemnified Party from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with any such action taken by Administrative Agent, unless the same are solely due to gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party and (ii) Borrower shall assign to Administrative Agent all rights and claims Borrower may have against all Persons supplying labor or materials in connection with the applicable Replacements (provided, that Administrative Agent may pursue such rights and claims only during such time as an Event of Default is continuing).
Appears in 2 contracts
Samples: Loan and Security Agreement (NRI Real Token Inc.), Mezzanine Loan and Security Agreement (NRI Real Token Inc.)
Disbursements from Replacement Reserve Account. (a) Administrative Agent Lender shall disburse to Borrower make disbursements from the Replacement Reserve Funds (or applicable portion thereof) for the cost of Replacements incurred by Borrower upon satisfaction by Borrower of each of the following conditionsconditions with respect to each such disbursement:
(ia) Borrower shall submit a Lender’s standard form of draw request for payment to Administrative Agent Lender at least ten (10) days Business Days prior to the date on which Borrower requests that such payment be made, which request for payment shall specify the Replacements to be paid and shall be accompanied by copies of paid invoices for which payment is the amounts requested;
; (iib) on the date such request is received by Administrative Agent Lender and on the date such payment is to be made, no Default or Event of Default shall be continuing;
exist and remain uncured; and (iiic) such request Lender shall be accompanied by have received (i) an Officer’s Certificate from Borrower (A) stating that the items to be funded by the requested disbursement are Replacements, and a description thereof, (B) stating that all Replacements (or, in the case of periodic payments approved by Administrative Agent pursuant to Section 7.3.2(c) below, the applicable portion of such Replacements) at the applicable Individual Property to be funded by the requested disbursement have been or will be completed in a good and workmanlike manner and in accordance with all applicable Legal Requirements, such Officer’s Certificate to be accompanied by copies of paid invoices or copies of invoices to be paid, as applicable, in each case with respect to invoices in excess of $25,000 and any licenses, permits or other approvals by any Governmental Authority required in connection with the applicable Replacements (or portion thereof, in the case of approved periodic payments), (BC) identifying each contractor Person that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments) to be funded by the requested disbursement, and (CD) stating that each such contractor Person has been paid in full or will have been be paid in full upon such disbursement (orsubject to commercially reasonable retention), in any case in which Borrower has requested (E) stating that Administrative Agent issue joint checks payable the Replacements to Borrower be funded have not been the subject of a previous disbursement, (F) stating that all previous disbursements of Replacement Reserve Funds have been used to pay the previously identified Replacements, and such contractor, (G) stating that each such contractor will all outstanding trade payables relating to the Replacements (other than those to be paid from the requested disbursement) have been paid in full with the funds to be so disbursed);
full, (ivii) if the costs a copy of the applicable Replacements exceed the Reserve Threshold any license, permit or in other approval by any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor Governmental Authority required in connection with the Replacements and not previously delivered to Lender, (or portion thereofiii) if required by Lender for requests in excess of $100,000.00 for a single item, in the case of approved periodic payments), such request is accompanied by (X) lien waivers or other evidence of payment reasonably satisfactory to Administrative AgentLender and releases from all parties furnishing materials and/or services in connection with the requested payment, (Yiv) at Administrative AgentLender’s requestreasonable option, a title search for the applicable Individual Property indicating that such Individual the Property is free from all Liens Liens, claims and other encumbrances not previously approved by Administrative Agent (other than Permitted Encumbrances);
Lender, and (v) such request is accompanied by such other evidence as Administrative Agent Lender shall reasonably request to demonstrate that the Replacements (or portion thereof, in the case of approved periodic payments) at the applicable Individual Property to be funded by the requested disbursement has been or will have been completed by the work related to such disbursement and are paid for or will have been paid for upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), that the same will be paid for upon such disbursement to Borrower); and
(vi) if the costs . Lender shall make disbursements as requested by Borrower on a monthly basis in increments of no less than $5,000 per disbursement. Lender may require an inspection of the applicable Replacements exceed the Reserve Threshold, if requested by Administrative Agent, the applicable Replacements shall be inspected by an independent qualified professional selected by Administrative Agent, Property at Borrower’s expense, expense during normal business hours with reasonable advance notice prior to making a monthly disbursement in order to verify that such Replacements (or portion thereofcompletion of improvements in excess of $100,000 for which reimbursement is sought. Notwithstanding the foregoing, in the case if following Borrower’s failure to satisfy any of approved periodic payments) have been completed.
(b) Administrative Agent shall not be required to make disbursements from the Replacement Reserve Account Funds Waiver Conditions and Borrower’s deposit of Replacement Reserve Funds in accordance with respect the provisions of Section 7.3.1, Borrower shall thereafter satisfy the Replacement Reserve Funds Waiver Conditions, then on the next Payment Date (so long as the Replacement Reserve Funds Waiver Conditions remain satisfied): (I) Lender shall disburse to the Properties (i) more than twice in each calendar month and (ii) unless such requested disbursement is in an amount greater than the Minimum Disbursement Amount (or a lesser amount if the total amount Borrower all Replacement Reserve Funds then on deposit in the Replacement Reserve Account on the date of the requested disbursement is less than the Minimum Disbursement Amount), in which case only one disbursement of the amount remaining in the Replacement Reserve Account shall be made).
(c) If (i) the cost of a Replacement exceeds the Minimum Disbursement Amount, (ii) the contractor performing such Replacement requires periodic payments pursuant to terms of a written contractAccount, and (iiiII) Administrative Agent has approved in writing in advance (such approval not Lender shall waive Borrower’s obligation to be unreasonably withheld) such periodic payments, a request for reimbursement from the make deposits of Replacement Reserve Account may be made after completion Funds in accordance with the provisions of a portion of the work under such contract, provided that (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the applicable Individual Property and are properly secured or have been installed in the applicable Individual Property, (C) all other conditions to disbursement set forth in this Section 7.3.2 have been satisfied, and (D) funds remaining in the Replacement Reserve Account are, in Administrative Agent’s reasonable judgment, sufficient to complete such Replacement and other contemplated Replacements 7.3.1 so long as and when the same are required to be completed.
(d) During the continuance of an Event of Default, Administrative Agent may use the Replacement Reserve Funds (or any portion thereof) Waiver Conditions continue to complete any Replacements that are then in progress or otherwise apply the same in accordance with Section 7.9(a) hereof, and such rights shall be in addition to all other rights and remedies provided to Administrative Agent under this Agreement and the other Loan Documents. If Administrative Agent shall apply the Replacement Reserve Funds (or any portion thereof) to complete any Replacements in accordance with the foregoing, (i) Borrower shall indemnify and hold harmless each Indemnified Party from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with any such action taken by Administrative Agent, unless the same are solely due to gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party and (ii) Borrower shall assign to Administrative Agent all rights and claims Borrower may have against all Persons supplying labor or materials in connection with the applicable Replacements (provided, that Administrative Agent may pursue such rights and claims only during such time as an Event of Default is continuing)remain satisfied.
Appears in 1 contract
Disbursements from Replacement Reserve Account. (a) Administrative Agent shall disburse to Borrower make disbursements from the Replacement Reserve Funds (or applicable portion thereof) for the cost of Replacements incurred by Borrower upon satisfaction by Borrower of each of the following conditionsconditions with respect to each such disbursement:
(ia) Borrower shall submit a Agent’s standard form of draw request for payment to Administrative Agent at least ten (10) days Business Days prior to the date on which Borrower requests that such payment be made, which request for payment shall specify the Replacements to be paid and shall be accompanied by copies of paid invoices for which payment is the amounts requested;
; (iib) on the date such request is received by Administrative Agent and on the date such payment is to be made, no Default or Event of Default shall be continuing;
exist and remain uncured; and (iiic) such request Agent shall be accompanied by have received (i) an Officer’s Certificate from Borrower (A) stating that the items to be funded by the requested disbursement are Replacements, and a description thereof, (B) stating that all Replacements (or, in the case of periodic payments approved by Administrative Agent pursuant to Section 7.3.2(c) below, the applicable portion of such Replacements) at the applicable Individual Property to be funded by the requested disbursement have been or will be completed in a good and workmanlike manner and in accordance with all applicable Legal Requirements, such Officer’s Certificate to be accompanied by copies of paid invoices or copies of invoices to be paid, as applicable, in each case with respect to invoices in excess of $25,000 and any licenses, permits or other approvals by any Governmental Authority required in connection with the applicable Replacements (or portion thereof, in the case of approved periodic payments), (BC) identifying each contractor Person that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments) to be funded by the requested disbursement, and (CD) stating that each such contractor Person has been paid in full or will have been be paid in full upon such disbursement disbursement, (orE) stating that the Replacements to be funded have not been the subject of a previous disbursement, in any case in which Borrower has requested (F) stating that Administrative Agent issue joint checks payable all previous disbursements of Replacement Reserve Funds have been used to Borrower pay the previously identified Replacements, and such contractor, (G) stating that each such contractor will all outstanding trade payables relating to the Replacements (other than those to be paid from the requested disbursement) have been paid in full with the funds to be so disbursed);
full; (ivii) if the costs a copy of the applicable Replacements exceed the Reserve Threshold any license, permit or in other approval by any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor Governmental Authority required in connection with the Replacements and not previously delivered to Agent; (or portion thereofiii) if required by Agent for requests in excess of Ten Thousand and No/100 Dollars ($10,000.00) for a single item, in the case of approved periodic payments), such request is accompanied by (X) lien waivers or other evidence of payment reasonably satisfactory to Administrative Agent, Agent and releases from all parties furnishing materials and/or services in connection with the requested payment; (Yiv) at Administrative Agent’s requestoption, a title search for the applicable Individual Property indicating that such Individual the Property is free from all Liens Liens, claims and other encumbrances not previously approved by Administrative Agent (other than Permitted Encumbrances);
Agent; and (v) such request is accompanied by such other evidence as Administrative Agent shall reasonably request to demonstrate that the Replacements (or portion thereof, in the case of approved periodic payments) at the applicable Individual Property to be funded by the requested disbursement has been or will have been completed by the work related to such disbursement and are paid for or will have been paid for upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), that the same will be paid for upon such disbursement to Borrower); and
. Agent shall make disbursements as requested by Borrower on a monthly basis in increments of no less than Twenty Five Thousand and No/100 Dollars (vi$25,000.00) if the costs per disbursement. Agent may require an inspection of the applicable Replacements exceed the Reserve Threshold, if requested by Administrative Property or any portion thereof at Agent, the applicable Replacements shall be inspected by an independent qualified professional selected by Administrative Agent, at Borrower’s expense, sole cost and expense prior to making a monthly disbursement in order to verify that such Replacements (or portion thereof, in the case of approved periodic payments) have been completed.
(b) Administrative Agent shall not be required to make disbursements from the Replacement Reserve Account with respect to the Properties (i) more than twice in each calendar month and (ii) unless such requested disbursement is in an amount greater than the Minimum Disbursement Amount (or a lesser amount if the total amount on deposit in the Replacement Reserve Account on the date of the requested disbursement is less than the Minimum Disbursement Amount), in which case only one disbursement of the amount remaining in the Replacement Reserve Account shall be made).
(c) If (i) the cost of a Replacement exceeds the Minimum Disbursement Amount, (ii) the contractor performing such Replacement requires periodic payments pursuant to terms of a written contract, and (iii) Administrative Agent has approved in writing in advance (such approval not to be unreasonably withheld) such periodic payments, a request for reimbursement from the Replacement Reserve Account may be made after completion of a portion improvements in excess of the work under such contract, provided that Two Hundred Thousand and No/100 Dollars (A$200,000.00) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request reimbursement is made are on site at the applicable Individual Property and are properly secured or have been installed in the applicable Individual Property, (C) all other conditions to disbursement set forth in this Section 7.3.2 have been satisfied, and (D) funds remaining in the Replacement Reserve Account are, in Administrative Agent’s reasonable judgment, sufficient to complete such Replacement and other contemplated Replacements as and when the same are required to be completedsought.
(d) During the continuance of an Event of Default, Administrative Agent may use the Replacement Reserve Funds (or any portion thereof) to complete any Replacements that are then in progress or otherwise apply the same in accordance with Section 7.9(a) hereof, and such rights shall be in addition to all other rights and remedies provided to Administrative Agent under this Agreement and the other Loan Documents. If Administrative Agent shall apply the Replacement Reserve Funds (or any portion thereof) to complete any Replacements in accordance with the foregoing, (i) Borrower shall indemnify and hold harmless each Indemnified Party from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with any such action taken by Administrative Agent, unless the same are solely due to gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party and (ii) Borrower shall assign to Administrative Agent all rights and claims Borrower may have against all Persons supplying labor or materials in connection with the applicable Replacements (provided, that Administrative Agent may pursue such rights and claims only during such time as an Event of Default is continuing).
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Samples: Building Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Disbursements from Replacement Reserve Account. (a) Administrative Agent shall disburse to Borrower the Replacement Reserve Funds (or applicable portion thereof) upon satisfaction by Borrower of each of the following conditions:
(i) Borrower shall submit a request for payment to Administrative Agent at least ten (10) days prior to the date on which Borrower requests that such payment be made, which request for payment shall specify the Replacements for which payment is requested;
(ii) on the date such request is received by Administrative Agent and on the date such payment is to be made, Provided no Event of Default exists, Lender shall be continuing;
make disbursements from the Replacement Reserve Account as requested by Borrower, and approved by Lender in its reasonable discretion, no more frequently than once in any thirty (iii30) such day period of no less than $5,000.00 upon delivery by Borrower of Lender’s standard form of draw request shall be accompanied by copies of paid or to be paid invoices, together with (a) an Officer’s Certificate (Ai) stating that all Replacements (or, in the case of periodic payments approved by Administrative Agent pursuant to Section 7.3.2(c) below, the applicable portion of such Replacements) at the applicable Individual Property to be funded by the requested disbursement have been or will be completed in good and workmanlike manner and in accordance with all applicable Legal Requirementsfederal, state and local laws, rules and regulations, such Officer’s Certificate to be accompanied by copies a copy of paid invoices or copies of invoices to be paidany license, as applicable, in each case with respect to invoices in excess of $25,000 and any licenses, permits permit or other approvals approval by any Governmental Authority required in connection with to commence and/or complete the applicable Replacements (or portion thereof, in the case of approved periodic payments)Replacements, (Bii) identifying each contractor Person that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments) to be funded by the requested disbursement, and (Ciii) stating that each such contractor Person has been or will have been paid in full upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and such contractor, that each such contractor for work completed or will be paid in full with the funds for work completed upon such disbursement, such Officer’s Certificate to be so disbursed);
(iv) if the costs of the applicable Replacements exceed the Reserve Threshold or in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), such request is accompanied by (X) conditional or non-conditional partial or final lien waivers waivers, as applicable, for requests exceeding $10,000 for a single item or other evidence of payment reasonably payment, in each case, satisfactory to Administrative AgentLender, and (Yb) at Administrative Agent’s request, a title search for the applicable Individual Property indicating that such Individual Property is free from all Liens not previously approved by Administrative Agent (other than Permitted Encumbrances);
(v) such request is accompanied by such other evidence as Administrative Agent Lender shall reasonably request that the Replacements (or portion thereof, in the case of approved periodic payments) at the applicable Individual Property to be funded by the requested disbursement has been or will have been completed by the work related to such disbursement and are paid for or will have been paid for upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), that the same will be paid for upon such disbursement to Borrower); and
(vi) if , for the costs amounts requested. Lender may require an inspection of the applicable Replacements exceed the Reserve Threshold, if requested by Administrative Agent, the applicable Replacements shall be inspected by an independent qualified professional selected by Administrative Agent, Property at Borrower’s expense, expense prior to making a monthly disbursement in order to verify that such Replacements (or portion thereof, completion of replacements and repairs of items in the case excess of approved periodic payments) have been completed.
(b) Administrative Agent shall not be required $10,000.00 for which reimbursement is sought. If Lender fails to make disbursements respond to a request for disbursement from the Replacement Reserve Account with respect to the Properties from Borrower within fifteen (i15) more than twice in each calendar month days after receipt of Borrower’s draw request and (ii) unless such requested disbursement is in an amount greater than the Minimum Disbursement Amount (or a lesser amount if the total amount on deposit in the Replacement Reserve Account on the date of the requested disbursement is less than the Minimum Disbursement Amount)all supporting documentation, in which case only one disbursement of the amount remaining in the Replacement Reserve Account Lender shall be made).
(c) If (i) the cost of a Replacement exceeds the Minimum Disbursement Amount, (ii) the contractor performing deemed to have provided its approval for such Replacement requires periodic payments pursuant to terms of a written contractdisbursement, and (iii) Administrative Agent has approved in writing in advance (Borrower is authorized to direct the Lockbox Bank to disburse such approval not to be unreasonably withheld) such periodic payments, a request for reimbursement from the Replacement Reserve Account may be made after completion of a portion of the work under such contract, provided that (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the applicable Individual Property and are properly secured or have been installed in the applicable Individual Property, (C) all other conditions to disbursement set forth in this Section 7.3.2 have been satisfied, and (D) funds remaining in the Replacement Reserve Account are, in Administrative Agent’s reasonable judgment, sufficient to complete such Replacement and other contemplated Replacements as and when the same are required to be completedfunds.
(d) During the continuance of an Event of Default, Administrative Agent may use the Replacement Reserve Funds (or any portion thereof) to complete any Replacements that are then in progress or otherwise apply the same in accordance with Section 7.9(a) hereof, and such rights shall be in addition to all other rights and remedies provided to Administrative Agent under this Agreement and the other Loan Documents. If Administrative Agent shall apply the Replacement Reserve Funds (or any portion thereof) to complete any Replacements in accordance with the foregoing, (i) Borrower shall indemnify and hold harmless each Indemnified Party from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with any such action taken by Administrative Agent, unless the same are solely due to gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party and (ii) Borrower shall assign to Administrative Agent all rights and claims Borrower may have against all Persons supplying labor or materials in connection with the applicable Replacements (provided, that Administrative Agent may pursue such rights and claims only during such time as an Event of Default is continuing).
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Disbursements from Replacement Reserve Account. (a) Administrative Agent Lender shall disburse to Borrower the Replacement Reserve Funds (or applicable portion thereof) upon satisfaction by Borrower of each of the following conditions:
(i) Borrower shall submit a request for payment to Administrative Agent Lender at least ten (10) days prior to the date on which Borrower requests that such payment be made, which request for payment shall specify the Replacements for which payment is requested;
(ii) on the date such request is received by Administrative Agent Lender and on the date such payment is to be made, no Event of Default shall be continuing;
(iii) such request shall be accompanied by an Officer’s Certificate (A) stating that all Replacements (or, in the case of periodic payments approved by Administrative Agent Lender pursuant to Section 7.3.2(c) below, the applicable portion of such Replacements) at the applicable Individual Property to be funded by the requested disbursement have been or will be completed in good and workmanlike manner and in accordance with all applicable Legal Requirements, such Officer’s Certificate to be accompanied by copies of paid invoices or copies of invoices to be paid, as applicable, in each case with respect to invoices in excess of $25,000 and any licenses, permits or other approvals by any Governmental Authority required in connection with the applicable Replacements (or portion thereof, in the case of approved periodic payments), (B) identifying each contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments) to be funded by the requested disbursement, and (C) stating that each such contractor has been or will have been paid in full upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent Lender issue joint checks payable to Borrower and such contractor, that each such contractor will be paid in full with the funds to be so disbursed);
(iv) if the costs of the applicable Replacements exceed the Reserve Threshold or in any case in which Borrower has requested that Administrative Agent Lender issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), such request is accompanied by (X) lien waivers or other evidence of payment reasonably satisfactory to Administrative AgentLender, (Y) at Administrative AgentLender’s request, a title search for the applicable Individual Property indicating that such Individual Property is free from all Liens not previously approved by Administrative Agent Lender (other than Permitted Encumbrances);
(v) such request is accompanied by such other evidence as Administrative Agent Lender shall reasonably request that the Replacements (or portion thereof, in the case of approved periodic payments) at the applicable Individual Property to be funded by the requested disbursement has been or will have been completed by the work related to such disbursement and are paid for or will have been paid for upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent Lender issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), that the same will be paid for upon such disbursement to Borrower); and
(vi) if the costs of the applicable Replacements exceed the Reserve Threshold, if requested by Administrative AgentLender, the applicable Replacements shall be have been inspected by an independent qualified professional selected by Administrative AgentLender, at Borrower’s expense, in order to verify that such Replacements (or portion thereof, in the case of approved periodic payments) have been completed.
(b) Administrative Agent Lender shall not be required to make disbursements from the Replacement Reserve Account with respect to the Properties (i) more than twice in each calendar month and (ii) unless such requested disbursement is in an amount greater than the Minimum Disbursement Amount (or a lesser amount if the total amount on deposit in the Replacement Reserve Account on the date of the requested disbursement is less than the Minimum Disbursement Amount), in which case only one disbursement of the amount remaining in the Replacement Reserve Account shall be made).
(c) If (i) the cost of a Replacement exceeds the Minimum Disbursement Amount, (ii) the contractor performing such Replacement requires periodic payments pursuant to terms of a written contract, and (iii) Administrative Agent Lender has approved in writing in advance (such approval not to be unreasonably withheld) such periodic payments, a request for reimbursement from the Replacement Reserve Account may be made after completion of a portion of the work under such contract, provided that (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the applicable Individual Property and are properly secured or have been installed in the applicable Individual Property, (C) all other conditions to disbursement set forth in this Section 7.3.2 have been satisfied, and (D) funds remaining in the Replacement Reserve Account are, in Administrative AgentLender’s reasonable judgment, sufficient to complete such Replacement and other contemplated Replacements as and when the same are required to be completed.
(d) During the continuance of an Event of Default, Administrative Agent Lender may use the Replacement Reserve Funds (or any portion thereof) to complete any Replacements that are then in progress or otherwise apply the same in accordance with Section 7.9(a7.8(a) hereof, and such rights shall be in addition to all other rights and remedies provided to Administrative Agent Lender under this Agreement and the other Loan Documents. If Administrative Agent Lender shall apply the Replacement Reserve Funds (or any portion thereof) to complete any Replacements in accordance with the foregoing, (i) Borrower shall indemnify and hold harmless each Indemnified Party from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with any such action taken by Administrative AgentLender, unless the same are solely due to gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party and (ii) Borrower shall assign to Administrative Agent Lender all rights and claims Borrower may have against all Persons supplying labor or materials in connection with the applicable Replacements (provided, that Administrative Agent Lender may pursue such rights and claims only during such time as an Event of Default is continuing).
Appears in 1 contract
Disbursements from Replacement Reserve Account. (a) Administrative Agent Lender shall disburse to Borrower make disbursements from the Replacement Reserve Funds Account as requested by Borrower to pay Replacement Expenditures in accordance with the Approved Annual Budget no more frequently than once in any thirty (or applicable portion thereof30) day period of no less than $15,000 upon satisfaction by Borrower of each of the following conditions:
: (ia) Borrower shall submit a written request for payment to Administrative Agent Lender at least ten five (105) days Business Days prior to the date on which Borrower requests that such payment be mademade and specifies the Replacement Expenditure to be paid, which request for payment shall specify the Replacements for which payment is requested;
(iib) on the date such request is received by Administrative Agent and on the date such payment is to be made, no Event of Default shall be continuing;
exist and remain uncured, (iiic) such request Lender shall be accompanied by have received an Officer’s Certificate (Ai) stating that that, to Borrower’s Knowledge, all Replacements (or, in the case of periodic payments approved by Administrative Agent pursuant to Section 7.3.2(c) below, the applicable portion of such Replacements) at the applicable Individual Property Replacement Expenditures to be funded by the requested disbursement have been or will be completed performed in good and workmanlike manner and in accordance with all applicable Legal Requirementsbuilding codes, such Officer’s Certificate to be accompanied by copies of paid invoices or copies of invoices to be paid, as applicable, rules and regulations in each case with respect to invoices in excess of $25,000 and any licenses, permits or other approvals by any Governmental Authority required in connection with the applicable Replacements (or portion thereof, in the case of approved periodic payments)all material respects, (Bii) identifying each contractor Person that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments) Replacement Expenditure performed at such Individual Property to be funded by the requested disbursement, and (Ciii) stating that each such contractor Person has been or will have been be paid in full upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks amounts then due and payable to Borrower and such contractor, that each such contractor will be paid in full with the funds to be so disbursed);
(iv) if the costs of the applicable Replacements exceed the Reserve Threshold or in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor Person in connection with such Replacement Expenditure with the Replacements (or portion thereof, in the case proceeds of approved periodic payments)such disbursement, such request is Officer’s Certificate to be accompanied by (Xa) lien waivers or other evidence of payment reasonably satisfactory to Administrative Agent, (Y) at Administrative Agent’s request, a title search for the applicable Individual Property indicating that such Individual Property is free from all Liens not previously approved by Administrative Agent (other than Permitted Encumbrances);
(v) such request is accompanied by such other evidence as Administrative Agent shall reasonably request that the Replacements (or portion thereof, in the case of approved periodic payments) at the applicable Individual Property to be funded by the requested disbursement has been or will have been completed by the work related to such disbursement and are paid for or will have been paid for upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), that the same will be paid for upon such disbursement to Borrower); and
(vi) if the costs of the applicable Replacements exceed the Reserve Threshold, if requested by Administrative Agent, the applicable Replacements shall be inspected by an independent qualified professional selected by Administrative Agent, at Borrower’s expense, in order to verify that such Replacements (or portion thereof, in the case of approved periodic payments) have been completed.
(b) Administrative Agent shall not be required to make disbursements from the Replacement Reserve Account with respect to the Properties (i) more than twice in each calendar month and (ii) unless such requested disbursement is in an amount greater than the Minimum Disbursement Amount (or a lesser amount if the total amount on deposit in the Replacement Reserve Account on the date of the requested disbursement is less than the Minimum Disbursement Amount), in which case only one disbursement of the amount remaining in the Replacement Reserve Account shall be made).
(c) If (i) the cost of a Replacement exceeds the Minimum Disbursement Amount, (ii) the contractor performing such Replacement requires periodic payments pursuant to terms of a written contract, and (iii) Administrative Agent has approved in writing in advance (such approval not to be unreasonably withheld) such periodic payments, a request for reimbursement from the Replacement Reserve Account may be made after completion of a portion of the work under such contract, provided that (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the applicable Individual Property and are properly secured or have been installed in the applicable Individual Property, (C) all other conditions to disbursement set forth in this Section 7.3.2 have been satisfied, and (D) funds remaining in the Replacement Reserve Account are, in Administrative Agent’s reasonable judgment, sufficient to complete such Replacement and other contemplated Replacements as and when the same are required to be completed.
(d) During the continuance of an Event of Default, Administrative Agent may use the Replacement Reserve Funds (or any portion thereof) to complete any Replacements that are then in progress or otherwise apply the same in accordance with Section 7.9(a) hereof, and such rights shall be in addition to all other rights and remedies provided to Administrative Agent under this Agreement and the other Loan Documents. If Administrative Agent shall apply the Replacement Reserve Funds (or any portion thereof) to complete any Replacements in accordance with the foregoing, (i) Borrower shall indemnify and hold harmless each Indemnified Party from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with any such action taken by Administrative Agent, unless the same are solely due to gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party and (ii) Borrower shall assign to Administrative Agent all rights and claims Borrower may have against all Persons supplying labor or materials in connection with the applicable Replacements (provided, that Administrative Agent may pursue such rights and claims only during such time as an Event of Default is continuing).invoices for
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Disbursements from Replacement Reserve Account. (a) Administrative Agent Lender shall disburse to Borrower Borrower, or at Borrower’s direction, the Master Tenant, the Replacement Reserve Funds from the Replacement Reserve Funds Account from time to time, but not more frequently than once in any thirty (or applicable portion thereof30) day period, upon satisfaction by Borrower of each of the following conditions:
: (ia) Borrower shall submit a written request for payment to Administrative Agent Lender on Lender’s standard form of draw request at least ten (10) days Business Days prior to the date on which Borrower requests that such payment be made, which request for payment shall specify made and specifies the Replacements for which payment is requested;
to be paid, (iib) on the date such request is received by Administrative Agent Lender and on the date such payment is to be made, no Event of Default shall be continuing;
exist and remain uncured, (iiic) such request Lender shall be accompanied by have received an Officer’s Certificate stating, to such officer’s knowledge, that each Person that supplied materials or labor in connection with the Replacements performed at such Individual Property to be funded by the requested disbursement has been paid in full or will be paid in full upon such disbursement, such Officer’s Certificate to be accompanied by a copy of a general corporate ledger setting forth in reasonable detail each such Person and each cost or expense to be paid or reimbursed, as applicable, and (Ad) stating Lender shall have received such other evidence as Lender shall reasonably request that all the Replacements (or, in the case of periodic payments approved by Administrative Agent pursuant to Section 7.3.2(c) below, the applicable portion of at such Replacements) at the applicable Individual Property to be funded by the requested disbursement have been or will be completed in good and an workmanlike manner and in accordance with all applicable Legal Requirementsfederal, such Officer’s Certificate to be accompanied by copies of paid invoices or copies of invoices to be paidstate and local laws, as applicable, in each case with respect to invoices in excess of $25,000 rules and any licenses, permits or other approvals by any Governmental Authority required in connection with the applicable Replacements (or portion thereof, in the case of approved periodic payments), (B) identifying each contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments) to be funded by the requested disbursement, and (C) stating that each such contractor has been or will have been paid in full upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and such contractor, that each such contractor will be paid in full with the funds to be so disbursed);
(iv) if the costs of the applicable Replacements exceed the Reserve Threshold or in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), such request is accompanied by (X) lien waivers or other evidence of payment reasonably satisfactory to Administrative Agent, (Y) at Administrative Agent’s request, a title search for the applicable Individual Property indicating that such Individual Property is free from all Liens not previously approved by Administrative Agent (other than Permitted Encumbrances);
(v) such request is accompanied by such other evidence as Administrative Agent shall reasonably request that the Replacements (or portion thereof, in the case of approved periodic payments) at the applicable Individual Property to be funded by the requested disbursement has been or will have been completed by the work related to such disbursement regulations and are paid for or will have been paid for upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), that the same will be paid for upon such disbursement to Borrower); and
(vi) if the costs of the applicable Replacements exceed the Reserve Threshold, if requested by Administrative Agent, the applicable Replacements shall be inspected by an independent qualified professional selected by Administrative Agent, at Borrower’s expense, in order to verify that such Replacements (or portion thereof, in the case of approved periodic payments) have been completed.
(b) Administrative Agent . Lender shall not be required to make disbursements from the Replacement Reserve Account with respect to the Properties (i) more than twice in each calendar month and (ii) any Individual Property unless such requested disbursement is in an amount greater than the Minimum Disbursement Amount $5,000 (or a lesser amount if the total amount on deposit in the Replacement Reserve Account on the date of the requested disbursement is less than the Minimum Disbursement Amount)$5,000, in which case only one disbursement of the amount remaining in the Replacement Reserve Account account shall be made).
(c) If (i) the cost of a Replacement exceeds the Minimum Disbursement Amount, (ii) the contractor performing and such Replacement requires periodic payments pursuant to terms of a written contract, and (iii) Administrative Agent has approved in writing in advance (such approval not to be unreasonably withheld) such periodic payments, a request for reimbursement from the Replacement Reserve Account may disbursement shall be made after completion only upon satisfaction of a portion of the work under such contract, provided that (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the applicable Individual Property and are properly secured or have been installed in the applicable Individual Property, (C) all other conditions to disbursement set forth each condition contained in this Section 7.3.2 have been satisfied, and (D) funds remaining in 7.3.2. Without limiting the Replacement Reserve Account are, in Administrative Agent’s reasonable judgment, sufficient to complete such Replacement and other contemplated Replacements as and when the same are required to be completed.
(d) During the continuance generality of an Event of Default, Administrative Agent may use the Replacement Reserve Funds (or any portion thereof) to complete any Replacements that are then in progress or otherwise apply the same in accordance with Section 7.9(a) hereof, and such rights shall be in addition to all other rights and remedies provided to Administrative Agent under this Agreement and the other Loan Documents. If Administrative Agent shall apply the Replacement Reserve Funds (or any portion thereof) to complete any Replacements in accordance with the foregoing, (i) if required by Lender for requests in excess of $50,000.00 for a single item, Borrower shall indemnify deliver to Lender lien waivers and hold harmless each Indemnified Party releases from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with any such action taken by Administrative Agent, unless the same are solely due to gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party and (ii) Borrower shall assign to Administrative Agent all rights and claims Borrower may have against all Persons supplying labor or parties furnishing materials and/or services in connection with the applicable Replacements (provided, that Administrative Agent requested payment. Lender may pursue such rights require an inspection of the Property at Borrower’s expense prior to making a monthly disbursement in order to verify completion of replacements and claims only during such time as an Event repairs of Default items in excess of $50,000.00 for which reimbursement is continuing)sought.
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Disbursements from Replacement Reserve Account. (a) Administrative Agent Lender shall make disbursements from the Replacement Reserve Account to pay the applicable Individual Borrower or Individual Operating Lessee only for the costs of the Replacements with respect to the related Individual Property upon satisfaction of the requirements set forth in this Section 7.3.2.
(b) Lender shall disburse to the applicable Individual Borrower or Individual Operating Lessee the Replacement Reserve Funds (or applicable portion thereof) from the Replacement Reserve Account from time to time upon satisfaction by the applicable Individual Borrower or Individual Operating Lessee of each of the following conditions:
: (i) the applicable Individual Borrower or Individual Operating Lessee shall submit a written request for payment to Administrative Agent Lender at least ten five (105) days prior to the date on which Borrower requests that such payment be made, which request for payment shall specify made and specifies the Replacements for which payment is requested;
to be paid, (ii) on the date such request is received by Administrative Agent and on the date such payment is to be made, no Event of Default shall be continuing;
exist and remain uncured and (iii) such request Lender shall be accompanied by have received an Officer’s Certificate Certificate: (A) stating that that, to Borrower’s knowledge, all Replacements (or, in the case of periodic payments approved by Administrative Agent pursuant to Section 7.3.2(c) below, the applicable portion of such Replacements) at the applicable Individual Property to be funded by the requested disbursement have been or will be completed performed in good and workmanlike manner and in accordance with all applicable Legal Requirementsfederal, such Officer’s Certificate to be accompanied by copies of paid invoices or copies of invoices to be paidstate and local laws, as applicablerules and regulations, in each case with respect to invoices in excess of $25,000 and any licenses, permits or other approvals by any Governmental Authority required in connection with the applicable Replacements (or portion thereof, in the case of approved periodic payments)all material respects, (B) identifying each contractor Person that supplied materials or labor in connection with the such Replacements (or portion thereof, in the case of approved periodic payments) to be funded by the requested disbursement, and (C) stating that each such contractor Person has been paid or will have been paid in full upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and such contractor, that each such contractor will be paid in full with the funds to be so disbursed);
(iv) if the costs of the applicable Replacements exceed the Reserve Threshold or in any case in which Borrower has requested that Administrative Agent issue joint checks amounts then due and payable to Borrower and the contractor that supplied materials or labor such Person in connection with the Replacements (or portion thereof, in with the case proceeds of approved periodic payments)such disbursement, such request is Officer’s Certificate to be accompanied by (X) lien waivers or other evidence of payment reasonably satisfactory to Administrative Agent, (Y) at Administrative Agent’s request, a title search for the applicable Individual Property indicating that such Individual Property is free from all Liens not previously approved by Administrative Agent (other than Permitted Encumbrances);
(v) such request is accompanied by such other evidence as Administrative Agent shall reasonably request that the Replacements (or portion thereof, in the case of approved periodic payments) at the applicable Individual Property to be funded by the requested disbursement has been or will have been completed by the work related to such disbursement and are paid for or will have been paid for upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), that the same will be paid for upon such disbursement to Borrower); and
(vi) if the costs of the applicable Replacements exceed the Reserve Threshold, if requested by Administrative Agent, the applicable Replacements shall be inspected by an independent qualified professional selected by Administrative Agent, at Borrower’s expense, in order to verify that such Replacements (or portion thereof, in the case of approved periodic payments) have been completed.
(b) Administrative Agent Lender. Lender shall not be required to make disbursements from the Replacement Reserve Account with respect to the Properties (i) more than twice in each calendar month and (ii) any Individual Property unless such requested disbursement is in an amount greater than the Minimum Disbursement Amount Twenty-Five Thousand and No/100 Dollars ($25,000.00) (or a lesser amount if the total amount on deposit in the Replacement Reserve Account on the date of the requested disbursement is less than the Minimum Disbursement Amount$25,000.00), in which case only one disbursement of the amount remaining in the account shall be made) and such disbursement shall be made only upon satisfaction of each condition contained in this Section 7.3.2. Subject to Section 7.3.2(c) below, in no event shall Lender be obligated to disburse funds to Borrower or Operating Lessee from the Replacement Reserve Account shall be made)if an Event of Default exists.
(c) If (i) Notwithstanding the cost of a Replacement exceeds the Minimum Disbursement Amountforegoing, (ii) the contractor performing such Replacement requires periodic payments pursuant to terms of a written contract, and (iii) Administrative Agent has approved in writing in advance (such approval not to be unreasonably withheld) such periodic payments, a request for reimbursement from the Replacement Reserve Account may be made after completion of a portion of the work under such contract, provided that (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the applicable Individual Property and are properly secured or have been installed in the applicable Individual Property, (C) all other conditions to disbursement set forth in this Section 7.3.2 have been satisfied, and (D) funds remaining in the Replacement Reserve Account are, in Administrative Agent’s reasonable judgment, sufficient to complete such Replacement and other contemplated Replacements as and when the same are required to be completed.
(d) During except during the continuance of an Event of Default, Administrative Agent may use Lender shall make disbursements from the Replacement Reserve Funds Account at the request of Manager upon receipt of a certificate (or any portion thereofi) to complete any Replacements setting forth the amount of the requested disbursement, (ii) certifying that are then in progress or otherwise apply the same in accordance with Section 7.9(a) hereofrequested disbursement will be used for the costs of FF&E as required by, and such rights shall be provided in addition to all other rights and remedies provided to Administrative Agent under this the applicable Management Agreement and (iii) certifying that the other Loan Documents. If Administrative Agent shall apply the Replacement Reserve Funds (or any portion thereof) to complete any Replacements amounts being requested are in accordance with the foregoingbudget provided under the Management Agreement, (i) Borrower shall indemnify and hold harmless each Indemnified Party from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with any such action taken by Administrative Agent, unless the same are solely due subject to gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party and (ii) Borrower shall assign to Administrative Agent all rights and claims Borrower may have against all Persons supplying labor or materials in connection with the applicable Replacements (provided, that Administrative Agent may pursue such rights and claims only during such time as an Event of Default is continuing)variances permitted thereby.
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Disbursements from Replacement Reserve Account. (a) Administrative Agent Lender shall disburse to Borrower the Replacement Reserve Funds (or applicable portion thereof) upon satisfaction by Borrower of each of the following conditions:
(i) Borrower shall submit a request for payment to Administrative Agent Lender at least ten (10) days prior to the date on which Borrower requests that such payment be made, which request for payment shall specify the Replacements for which payment is requested;
(ii) on the date such request is received by Administrative Agent Lender and on the date such payment is to be made, no Event of Default shall be continuing;
(iii) such request shall be accompanied by an Officer’s Certificate (A) stating that all Replacements (or, in the case of periodic payments approved by Administrative Agent Lender pursuant to Section 7.3.2(c) below, the applicable portion of such Replacements) at the applicable Individual Property to be funded by the requested disbursement have been or will be completed in good and workmanlike manner and in accordance with all applicable Legal Requirements, such Officer’s Certificate to be accompanied by copies of paid invoices or copies of invoices to be paid, as applicable, in each case with respect to invoices in excess of $25,000 and any licenses, permits or other approvals by any Governmental Authority required in connection with the applicable Replacements (or portion thereof, in the case of approved periodic payments), (B) identifying each contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments) to be funded by the requested disbursement, and (C) stating that each such contractor has been or will have been paid in full upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent Lender issue joint checks payable to Borrower and such contractor, that each such contractor will be paid in full with the funds to be so disbursed);
(iv) if the costs of the applicable Replacements exceed the Reserve Threshold or in any case in which Borrower has requested that Administrative Agent Lender issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), such request is accompanied by (X) lien waivers or other evidence of payment reasonably satisfactory to Administrative AgentLender, (Y) at Administrative AgentLender’s request, a title search for the applicable Individual Property indicating that such Individual the Property is free from all Liens not previously approved by Administrative Agent Lender (other than Permitted Encumbrances);
(v) such request is accompanied by such other evidence as Administrative Agent Lender shall reasonably request that the Replacements (or portion thereof, in the case of approved periodic payments) at the applicable Individual Property to be funded by the requested disbursement has been or will have been completed by the work related to such disbursement and are paid for or will have been paid for upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent Lender issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), that the same will be paid for upon such disbursement to Borrower); and
(vi) if the costs of the applicable Replacements exceed the Reserve Threshold, if requested by Administrative AgentLender, the applicable Replacements shall be have been inspected by an independent qualified professional selected by Administrative AgentLender, at Borrower’s expense, in order to verify that such Replacements (or portion thereof, in the case of approved periodic payments) have been completed.
(b) Administrative Agent Lender shall not be required to make disbursements from the Replacement Reserve Account with respect to the Properties Property (i) more than twice once in each calendar month and (ii) unless such requested disbursement is in an amount greater than the Minimum Disbursement Amount (or a lesser amount if the total amount on deposit in the Replacement Reserve Account on the date of the requested disbursement is less than the Minimum Disbursement Amount), in which case only one disbursement of the amount remaining in the Replacement Reserve Account shall be made).
(c) If (i) the cost of a Replacement exceeds the Minimum Disbursement Amount, (ii) the contractor performing such Replacement requires periodic payments pursuant to terms of a written contract, and (iii) Administrative Agent Lender has approved in writing in advance (such approval not to be unreasonably withheld) such periodic payments, a request for reimbursement from the Replacement Reserve Account may be made after completion of a portion of the work under such contract, provided that (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the applicable Individual Property and are properly secured or have been installed in the applicable Individual Property, (C) all other conditions to disbursement set forth in this Section 7.3.2 have been satisfied, and (D) funds remaining in the Replacement Reserve Account are, in Administrative AgentLender’s reasonable judgment, sufficient to complete such Replacement and other contemplated Replacements as and when the same are required to be completed.
(d) During the continuance of an Event of Default, Administrative Agent Lender may use the Replacement Reserve Funds (or any portion thereof) to complete any Replacements that are then in progress or otherwise apply the same in accordance with Section 7.9(a7.8(a) hereof, hereof and such rights shall be in addition to all other rights and remedies provided to Administrative Agent Lender under this Agreement and the other Loan Documents. If Administrative Agent Lender shall apply the Replacement Reserve Funds (or any portion thereof) to complete any Replacements in accordance with the foregoing, (i) Borrower shall indemnify and hold harmless each Indemnified Party from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with any such action taken by Administrative AgentLender, unless the same are solely due to gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party and (ii) Borrower shall assign to Administrative Agent Lender all rights and claims Borrower may have against all Persons supplying labor or materials in connection with the applicable Replacements (provided, that Administrative Agent Lender may pursue such rights and claims only during such time as an Event of Default is continuing).
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Disbursements from Replacement Reserve Account. (a) Administrative Agent Lender shall make disbursements from the Replacement Reserve Account to pay Borrower only for the costs of the Replacements upon satisfaction of the requirements set forth in this Section 7.3.2. Lender shall not be obligated to make disbursements from the Replacement Reserve Account to reimburse Borrower for the costs which are to be reimbursed from the Required Repair Fund.
(b) Lender shall disburse to Borrower the Replacement Reserve Funds (or applicable portion thereof) from the Replacement Reserve Account from time to time upon satisfaction by Borrower of each of the following conditions:
: (i) Borrower shall submit a written request for payment to Administrative Agent Lender at least ten five (105) days prior to the date on which Borrower requests that such payment be made, which request for payment shall specify made and specifies the Replacements for which payment is requested;
to be paid, (ii) on the date such request is received by Administrative Agent and on the date such payment is to be made, no Event of Default shall be continuing;
exist and remain uncured and (iii) such request Lender shall be accompanied by have received an Officer’s Certificate Certificate: (A) stating that that, to Borrower’s knowledge, all Replacements (or, in the case of periodic payments approved by Administrative Agent pursuant to Section 7.3.2(c) below, the applicable portion of such Replacements) at the applicable Individual Property to be funded by the requested disbursement have been or will be completed performed in good and workmanlike manner and in accordance with all applicable Legal Requirementsfederal, such Officer’s Certificate to be accompanied by copies of paid invoices or copies of invoices to be paidstate and local laws, as applicablerules and regulations, in each case with respect to invoices in excess of $25,000 and any licenses, permits or other approvals by any Governmental Authority required in connection with the applicable Replacements (or portion thereof, in the case of approved periodic payments)all material respects, (B) identifying each contractor Person that supplied materials or labor in connection with the such Replacements (or portion thereof, in the case of approved periodic payments) to be funded by the requested disbursement, and (C) stating that each such contractor Person has been paid or will have been paid in full upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and such contractor, that each such contractor will be paid in full with the funds to be so disbursed);
(iv) if the costs of the applicable Replacements exceed the Reserve Threshold or in any case in which Borrower has requested that Administrative Agent issue joint checks amounts then due and payable to Borrower and the contractor that supplied materials or labor such Person in connection with the Replacements (or portion thereof, in with the case proceeds of approved periodic payments)such disbursement, such request is Officer’s Certificate to be accompanied by (X) lien waivers or other evidence of payment reasonably satisfactory to Administrative Agent, (Y) at Administrative Agent’s request, a title search for the applicable Individual Property indicating that such Individual Property is free from all Liens not previously approved by Administrative Agent (other than Permitted Encumbrances);
(v) such request is accompanied by such other evidence as Administrative Agent shall reasonably request that the Replacements (or portion thereof, in the case of approved periodic payments) at the applicable Individual Property to be funded by the requested disbursement has been or will have been completed by the work related to such disbursement and are paid for or will have been paid for upon such disbursement (or, in any case in which Borrower has requested that Administrative Agent issue joint checks payable to Borrower and the contractor that supplied materials or labor in connection with the Replacements (or portion thereof, in the case of approved periodic payments), that the same will be paid for upon such disbursement to Borrower); and
(vi) if the costs of the applicable Replacements exceed the Reserve Threshold, if requested by Administrative Agent, the applicable Replacements shall be inspected by an independent qualified professional selected by Administrative Agent, at Borrower’s expense, in order to verify that such Replacements (or portion thereof, in the case of approved periodic payments) have been completed.
(b) Administrative Agent Lender. Lender shall not be required to make disbursements from the Replacement Reserve Account with respect to the Properties (i) more than twice in each calendar month and (ii) Property unless such requested disbursement is in an amount greater than the Minimum Disbursement Amount Twenty-Five Thousand and No/100 Dollars ($25,000.00) (or a lesser amount if the total amount on deposit in the Replacement Reserve Required Repair Account on the date of the requested disbursement is less than the Minimum Disbursement Amount$25,000.00), in which case only one disbursement of the amount remaining in the account shall be made) and such disbursement shall be made only upon satisfaction of each condition contained in this Section 7.3.2. Subject to Section 7.3.2(c) below, in no event shall Lender be obligated to disburse funds to Borrower from the Replacement Reserve Account shall be made)if an Event of Default exists.
(c) If (i) Notwithstanding the cost of a Replacement exceeds the Minimum Disbursement Amountforegoing, (ii) the contractor performing such Replacement requires periodic payments pursuant to terms of a written contract, and (iii) Administrative Agent has approved in writing in advance (such approval not to be unreasonably withheld) such periodic payments, a request for reimbursement from the Replacement Reserve Account may be made after completion of a portion of the work under such contract, provided that (A) such contract requires payment upon completion of such portion of the work, (B) the materials for which the request is made are on site at the applicable Individual Property and are properly secured or have been installed in the applicable Individual Property, (C) all other conditions to disbursement set forth in this Section 7.3.2 have been satisfied, and (D) funds remaining in the Replacement Reserve Account are, in Administrative Agent’s reasonable judgment, sufficient to complete such Replacement and other contemplated Replacements as and when the same are required to be completed.
(d) During except during the continuance of an Event of Default, Administrative Agent may use Lender shall make disbursements from the Replacement Reserve Funds Account at the request of Manager upon receipt of a certificate (or any portion thereofi) to complete any Replacements setting forth the amount of the requested disbursement, (ii) certifying that are then in progress or otherwise apply the same in accordance with Section 7.9(a) hereofrequested disbursement will be used for FF&E as required by, and such rights shall be provided in addition to all other rights and remedies provided to Administrative Agent under this the applicable Management Agreement and (iii) certifying that the other Loan Documents. If Administrative Agent shall apply the Replacement Reserve Funds (or any portion thereof) to complete any Replacements amounts being requested are in accordance with the foregoingbudget provided under the Management Agreement, (i) Borrower shall indemnify and hold harmless each Indemnified Party from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorneys’ fees and expenses) arising from or in any way connected with any such action taken by Administrative Agent, unless the same are solely due subject to gross negligence, illegal acts, fraud or willful misconduct of such Indemnified Party and (ii) Borrower shall assign to Administrative Agent all rights and claims Borrower may have against all Persons supplying labor or materials in connection with the applicable Replacements (provided, that Administrative Agent may pursue such rights and claims only during such time as an Event of Default is continuing)variances permitted thereby.
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