FF&E Reserve. Certain Entities comprising Landlord have previously established the FF&E Reserve for each Senior Housing Property. Tenant shall, as Additional Charges, with respect to each Lease Year, or portion thereof, deposit, or cause to be deposited, the FF&E Reserve Payment into the FF&E Reserve for each Senior Housing Property, of which amounts shall be applied to (a) replacements and renewals to such Property’s furniture, furnishings, fixtures, soft goods, case goods, vehicles and equipment, but specifically excluding any fixed asset supplies or software, and (b) routine repairs and maintenance to the Facility located on such Property which are normally capitalized under GAAP, such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not major repairs, alterations, improvements, renewals or replacements to such Facility’s building’s structure or exterior façade or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems. Any additional funds required for repairs, maintenance, renovations and replacements to and at any Senior Housing Property in excess of those on deposit for such Property in the applicable FF&E Reserve shall be advanced in accordance with Section 5.1.3(b). Tenant shall prepare, with respect to each Senior Housing Property, an estimate (the “FF&E Estimate”) of FF&E Reserve expenditures necessary at such Property during the ensuing Fiscal Year, and shall submit such FF&E Estimate to Landlord, on or before December 1 of the preceding Lease Year, for its review and approval, which approval shall not be unreasonably withheld, delayed or conditioned. In the event that Landlord shall fail to respond within thirty (30) days after receipt of the FF&E Estimate, such FF&E Estimate shall be deemed approved by Landlord. Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures from the FF&E Reserve to be applied to the cost of repairs, maintenance, renovations and replacements to and at such Property in accordance with this Agreement provided that Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, which approval shall not be unreasonably withheld, delayed or conditioned, except in the case of emergency where immediate action is necessary to prevent imminent harm to person or property. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002, funds in the FF&E Reserve and all property purchased with those funds shall be the property of Landlord and all FF&E Reserve Payments shall constitute Additional Charges. After September 30, 2002, funds deposited in the FF&E Reserve and all property purchased with those funds deposited after September 30, 2002 shall be the property of Tenant. Upon the expiration or sooner termination of this Agreement, funds in the FF&E Reserve and all property purchased with those funds during the Term shall be paid, granted and assigned to Landlord as Additional Charges. Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and/or any Superior Mortgagee to assist Landlord and/or any Superior Mortgagee in establishing or perfecting the Superior Mortgagee’s security interest in Landlord’s residual interest in the funds which are in the FF&E Reserve; provided, however, that no such documentation shall contain any amendment to or modification of any of the provisions of this Agreement.
Appears in 2 contracts
Samples: Master Lease Agreement (Senior Housing Properties Trust), Master Lease Agreement (Five Star Quality Care Inc)
FF&E Reserve. Certain Entities comprising Tenant shall cause Manager to establish and maintain a reserve account (the "FF&E Reserve") in accordance with the terms of the Management Agreement and to deposit into such account during each Fiscal Year monies for the account of Landlord have previously established the FF&E Reserve for each Senior Housing Property. Tenant shall, as Additional Charges, with respect to each Lease Year, or portion thereof, deposit, or cause to be deposited, the FF&E Reserve Payment into the FF&E Reserve for each Senior Housing Property, of (which amounts shall be applied to (a) replacements funds of Landlord for all purposes and renewals to such Property’s furniture, furnishings, fixtures, soft goods, case goods, vehicles and equipment, but specifically excluding any fixed asset supplies or software, and (b) routine repairs and maintenance to the Facility located on such Property which are normally capitalized under GAAP, such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not major repairs, alterations, improvements, renewals or replacements to such Facility’s building’s structure or exterior façade or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems. Any additional funds required for repairs, maintenance, renovations and replacements to and at any Senior Housing Property in excess of those on deposit for such Property in the applicable FF&E Reserve shall be advanced reimbursed to Tenant in accordance with Section 5.1.3(b3.1.6(f)) in the amount required to be maintained pursuant to the Management Agreement and in accordance with established custom of Manager prior to the Commencement Date. Landlord shall be responsible for the payment of all amounts required to be paid by "Owner" (as defined in the Management Agreement) pursuant to the Management Agreement to fund the FF&E Reserve, including, without limitation, any deficits therein, and for paying for all FF&E necessary for the continued operation of the Facility in accordance with First Class Operating Standards, subject to the provisions of Schedule 22.2. Tenant shall prepare, with respect to each Senior Housing Property, an estimate (make no expenditure for replacement of ------------- FF&E in excess of the “FF&E Estimate”) of amounts in the FF&E Reserve without first obtaining the written approval of Landlord (unless Tenant makes such expenditures necessary at such Property during the ensuing Fiscal Year, and shall submit such FF&E Estimate from its own funds without any right to Landlord, on or before December 1 of the preceding Lease Year, for its review and approval, which approval shall not be unreasonably withheld, delayed or conditionedreimbursement hereunder). In the event that Tenant funds any amounts required to be funded by Landlord for FF&E pursuant hereto or by "Owner" pursuant to the Management Agreement which Landlord has approved, Tenant shall fail receive a reimbursement in accordance with Section 3.1.6(f) hereof. Any additions to respond within thirty (30) days after receipt or replacements of furniture, fixtures, and equipment located at the Leased Property shall become part of the FF&E Estimate, such FF&E Estimate shall be deemed approved which is owned by Landlord, subject to the limitations set forth in Schedule 22.2 hereof. Throughout the ------------- Term of this Lease, Tenant shall, consistent with at its sole cost and expense but subject to the terms hereof and of the Management Agreement, cause all of the items of FF&E Estimate approved by Landlord, from time to time make expenditures from the FF&E Reserve to be applied to the cost of repairs, maintenance, renovations in proper working order and replacements to in good condition (ordinary wear and at such Property in accordance with this Agreement provided that Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, which approval shall not be unreasonably withheld, delayed or conditioned, except in the case of emergency where immediate action is necessary to prevent imminent harm to person or property. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002, funds in the FF&E Reserve and all property purchased with those funds shall be the property of Landlord and all FF&E Reserve Payments shall constitute Additional Charges. After September 30, 2002, funds deposited in the FF&E Reserve and all property purchased with those funds deposited after September 30, 2002 shall be the property of Tenant. Upon the expiration or sooner termination of this Agreement, funds in the FF&E Reserve and all property purchased with those funds during the Term shall be paid, granted and assigned to Landlord as Additional Charges. Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and/or any Superior Mortgagee to assist Landlord and/or any Superior Mortgagee in establishing or perfecting the Superior Mortgagee’s security interest in Landlord’s residual interest in the funds which are in the FF&E Reserve; provided, however, that no such documentation shall contain any amendment to or modification of any of the provisions of this Agreementtear excepted).
Appears in 2 contracts
Samples: Lease Agreement (Host Marriott L P), Lease Agreement (Host Marriott Corp/)
FF&E Reserve. Certain Entities comprising Landlord have previously (a) Upon execution of this Lease, Lessee has established a reserve account (the "FF&E Reserve") in a bank designated by Lessee and approved by Lessor. The purpose of the FF&E Reserve for each Senior Housing Property. Tenant shall, as Additional Charges, with respect is to each Lease Year, or portion thereof, deposit, or cause to be deposited, cover the FF&E Reserve Payment into the FF&E Reserve for each Senior Housing Property, of which amounts shall be applied to cost of: (ai) replacements and renewals to such Property’s furniture, furnishings, fixtures, soft goods, case goods, vehicles of the Hotel's Furniture and equipment, but specifically excluding any fixed asset supplies or software, Equipment and Fixtures; (bii) certain routine repairs and maintenance to the Facility located on such Property any Hotel building which are normally capitalized under GAAP, GAAP such as exterior and interior repainting, resurfacing resurface building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not ; and (iii) major repairs, alterations, improvementsimprovements to the Hotel's buildings, renewals or replacements to such Facility’s building’s structure structure, roof, or exterior façade facade, or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems. Any additional funds required for repairs, maintenance, renovations and replacements to and at any Senior Housing Property in excess of those on deposit for such Property in the applicable FF&E Reserve shall be advanced in accordance with Section 5.1.3(b). Tenant shall prepare, with respect to each Senior Housing Property, an estimate (the “FF&E Estimate”) of FF&E Reserve expenditures necessary at such Property during the ensuing Fiscal Year, and shall submit such FF&E Estimate to Landlord, on or before December 1 of the preceding Lease Year, for its review and approval, which approval shall not be unreasonably withheld, delayed or conditioned. In the event that Landlord shall fail to respond within thirty (30) days after receipt of the FF&E Estimate, such FF&E Estimate shall be deemed approved by Landlord. Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures from the FF&E Reserve to be applied to the cost of repairs, maintenance, renovations and replacements to and at such Property in accordance with this Agreement provided that Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, which approval shall not be unreasonably withheld, delayed or conditioned, except in the case of emergency where immediate action is necessary to prevent imminent harm to person or property. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002, funds in the FF&E Reserve and all property purchased with those funds shall be the property of Landlord and all FF&E Reserve Payments shall constitute Additional Charges. After September 30, 2002, funds deposited in the FF&E Reserve and all property purchased with those funds deposited after September 30, 2002 shall be the property of Tenant. Upon the expiration or sooner termination of this Agreement, funds in the FF&E Reserve and all property purchased with those funds during the Term shall be paid, granted and assigned to Landlord as Additional Charges. Tenant Lessee agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and/or Lessor and any Superior Mortgagee Lessor mortgagee to assist Landlord and/or any Superior Mortgagee Lessor and such Lessor mortgagee in establishing or perfecting the Superior Mortgagee’s Lessor mortgagee's security interest in Landlord’s Lessor's residual interest in the funds which are in the FF&E Reserve; provided, however, that no such documentation shall contain any amendment to or modification of any of the provisions of this AgreementLease. It is acknowledged and agreed, that during the Term, funds in the FF&E Reserve are the property of Lessee.
(b) Throughout the Term, Lessee shall, on behalf of Lessor, transfer (within ten (10) Business Days after the end of each calendar month during the Term) into the FF&E Reserve an amount equal to __% of Room Revenues for such calendar month. Lessee's obligation to pay Base Rent as set forth in Section 3.1(a) hereof shall be offset each month by the amount so deposited into the FF&E Reserve. Together with the documentation provided to Lessor pursuant to Section 3.1, Lessee shall also deliver to Lessor an Officer's Certificate setting forth the total amount of deposits made to and expenditures from the FF&E Reserve for the preceding Fiscal Year, together with a reconciliation of such expenditures with the FF&E Estimate (as defined below).
(c) With respect to each Fiscal Year during the Term, Lessee shall prepare an estimate (the "FF&E Estimate") of FF&E Reserve expenditures necessary during the ensuing Fiscal Year, and shall submit such FF&E Estimate to Lessor, on or before December 1st of the preceding Fiscal Year, for its review and approval, which approval shall not be unreasonably withheld. In the event that Lessor shall fail to respond within thirty (30) days after receipt of the FF&E Estimate, such FF&E Estimate shall be deemed approved by Lessor. All expenditures from the FF&E Reserve shall be (as to both the amount of such expenditure and the timing thereof) both reasonable and necessary, given the objective that the Hotel be maintained and operated to a standard comparable to competitive hotels. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliates of Lessee without markup or allocated internal costs by Lessee or its Affiliates.
(d) Lessee shall, consistent with the FF&E Estimate approved by Lessor, from time to time make expenditures from the FF&E Reserve as it deems necessary provided that Lessee shall not materially deviate from the FF&E Estimate approved by Lessor without the prior approval of Lessor, which approval shall not be unreasonably withheld, except in the case of emergencies where immediate action is necessary to prevent imminent harm to person or property.
(e) Upon the expiration of the Term, funds in the FF&E Reserve and all property purchased with funds from the FF&E Reserve during the Term shall be paid, granted and assigned to Lessor.
(f) Notwithstanding anything to the contrary contained in this Section 9.2, so long as the Management Agreement is in full force and effect and Manager is maintaining the reserves required thereunder, Lessee's obligation to maintain the FF&E Reserve and other obligations under this Section 9.2 shall be deemed to have been met.
Appears in 2 contracts
Samples: Lease Agreement (Strategic Hotel Capital Inc), Lease Agreement (Strategic Hotel Capital Inc)
FF&E Reserve. Certain Entities comprising (a) The FF&E Reserve, all amounts deposited therein, and all Capital Replacements shall belong to Landlord.
(b) Beginning on February 25, 2007 and on the twenty-fifth day of every month thereafter, Tenant shall transfer into the FF&E Reserve an amount equal to the Applicable Percentage of Total Hotel Sales for the prior month.
(c) Not less than sixty (60) days prior to the first day of each Fiscal Year after the 2005 Fiscal Year, Tenant shall submit to Landlord have previously established for Landlord's approval a proposed estimate of expenditures from the FF&E Reserve for each Senior Housing Property. Tenant shall, as Additional Charges, with respect to each Lease Year, the - 32 - ensuing full or portion thereof, deposit, or cause to be deposited, the FF&E Reserve Payment into the FF&E Reserve for each Senior Housing Property, of which amounts shall be applied to (a) replacements and renewals to such Property’s furniture, furnishings, fixtures, soft goods, case goods, vehicles and equipment, but specifically excluding any fixed asset supplies or software, and (b) routine repairs and maintenance to the Facility located on such Property which are normally capitalized under GAAP, such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not major repairs, alterations, improvements, renewals or replacements to such Facility’s building’s structure or exterior façade or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems. Any additional funds required for repairs, maintenance, renovations and replacements to and at any Senior Housing Property in excess of those on deposit for such Property in the applicable FF&E Reserve shall be advanced in accordance with Section 5.1.3(b). Tenant shall prepare, with respect to each Senior Housing Property, an estimate (the “FF&E Estimate”) of FF&E Reserve expenditures necessary at such Property during the ensuing partial Fiscal Year, and shall submit such as the case may be (the "FF&E ESTIMATE"). If Landlord fails to disapprove of a proposed FF&E Estimate to Landlord, on or before December 1 of the preceding Lease Year, for its review and approval, which approval shall not be unreasonably withheld, delayed or conditioned. In the event that Landlord shall fail to respond within thirty (30) days after receipt of the submission thereof to Landlord for its approval, the same shall be deemed approved. Together with each such FF&E Estimate, such Tenant shall provide to Landlord a proposed five-year capital plan for the Hotel for Landlord's review and approval. Tenant will provide Landlord with the material data and information utilized in preparing the FF&E Estimates or any revisions thereof. Tenant will not be deemed to have made any guaranty, warranty or representation whatsoever in connection with the FF&E Estimates, except that the proposed FF&E Estimates reflect Tenant's best professional estimates of the matters they describe. The FF&E Estimate for the 2005 Fiscal Year shall have been delivered by Tenant to Landlord on or before the Commencement Date.
(d) In the event Landlord disapproves or raises any objections to the proposed FF&E Estimate, or any portion thereof, or any revisions thereto, Landlord and Tenant shall cooperate with each other in good faith to resolve the disputed or objectionable items. If Landlord disapproves of a proposed FF&E Estimate, Landlord will disapprove on a specific line-by-line basis to the extent reasonably practical. Any dispute with respect to a proposed FF&E Estimate which is not resolved by the parties within thirty (30) days after the submission thereof to Landlord shall be deemed approved resolved by LandlordArbitration.
(e) All expenditures from the FF&E Reserve shall be (as to both the amount of each such expenditure and the timing thereof) both reasonable and necessary, given the objective that the Hotel will be maintained and operated to a standard comparable to competitive hotels. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without markup or allocated internal costs by Tenant or its Affiliated Persons except that Tenant may use Affiliated Persons to provide goods and services if Landlord has granted its prior written approval thereof.
(f) Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures from the FF&E Reserve to be applied to pay for Capital Replacements made during the cost of repairs, maintenance, renovations and replacements to and at such Property in accordance with this Agreement provided that Term. Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, which approval shall not be unreasonably withheld, delayed or conditioned, except in the case of emergency where immediate action is necessary to prevent imminent harm to person or property. All Notwithstanding anything in this Agreement to the contrary, no additional cost or expense shall be incurred or paid in connection with any Capital Replacements made during the last two (2) years of the Term to the extent attributable solely to complying with the InterContinental brand standards.
(g) Any amounts from remaining in the FF&E Reserve at the close of each Lease Year will be carried forward and retained in the FF&E Reserve. Any and all portions of the Hotel which are scrapped or removed in connection with the making of any major or non-major repairs, renovations, additions, alterations, improvements, removals or replacements shall be paid to Persons who are not Affiliated Persons disposed of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002, funds any net proceeds thereof shall be deposited in the FF&E Reserve and all property purchased with those funds not included in Total Hotel Sales. In addition, any proceeds from the sale of FF&E no longer necessary to the operation of the Hotel shall be added to the FF&E Reserve.
(h) Subject to the terms of SECTION 5.1.2 (j), Tenant shall be the property of Landlord and all only party entitled to withdraw funds from the FF&E Reserve Payments until a Default shall constitute Additional Charges. After September 30occur.
(i) Upon the expiration or earlier termination of the Term, 2002Tenant shall disburse to Landlord, or as Landlord shall direct, all amounts remaining in the FF&E Reserve after payments of all expenses on account of Capital Replacements appropriately incurred by Tenant during the Term.
(j) So long as the Managed Hotels are Pooled FF&E Hotels, it is understood and agreed that funds deposited in the FF&E Reserve pursuant to this Agreement and all property purchased with those funds deposited after September 30, 2002 the Reserve Account under New Management Agreement shall be the property of Tenant. Upon the expiration or sooner termination of this Agreement, funds maintained and used on a consolidated basis such that all amounts to be deposited in the FF&E Reserve and all property purchased with those funds during the Term such Reserve Account shall be paid, granted deposited in a single account and assigned Portfolio Manager and Tenant may apply any funds therein to Landlord as Additional Charges. Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and/or any Superior Mortgagee to assist Landlord and/or any Superior Mortgagee in establishing or perfecting the Superior Mortgagee’s security interest in Landlord’s residual interest in the funds which are in the FF&E Reserve; provided, however, that no such documentation shall contain any amendment to or modification of any of the provisions Pooled FF&E Hotels in accordance with the terms of this Agreement and the New Management Agreement.
(k) Notwithstanding anything contained herein to the contrary, if Landlord advises Tenant that in Landlord's opinion, the fair market value of all personal property of Landlord at, about or which forms a part of the Property is equal to or exceeds thirteen and one half percent (13.5%) of the fair market value of the Property, Tenant and its Affiliates shall not use funds from the FF&E Reserve or which are required to be expended pursuant to any purchase agreement to purchase additional personal property for use at, about or as part of the Property without Landlord's prior written consent, which consent may be granted or withheld in Landlord's sole and absolute judgment.
Appears in 1 contract
Samples: Stock Purchase Agreement (Hospitality Properties Trust)
FF&E Reserve. Certain Entities comprising Landlord have previously established (a) Upon execution of this Agreement, Tenant shall establish a reserve account (the "FF&E Reserve") in a bank designated by Tenant and approved by Landlord. The purpose of the FF&E Reserve for each Senior Housing Property. Tenant shall, as Additional Charges, with respect is to each Lease Year, or portion thereof, deposit, or cause to be deposited, cover the FF&E Reserve Payment into the FF&E Reserve for each Senior Housing Property, of which amounts shall be applied to cost of:
(ai) replacements Replacements and renewals to such Property’s furniture, the Hotel's furnishings, fixtures, soft goods, case goods, vehicles fixtures and equipment, but specifically excluding any fixed asset supplies or software, and ;
(bii) Certain routine repairs and maintenance to the Facility located on such Property Hotel building which are normally capitalized under GAAP, GAAP such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not major ; and
(iii) Major repairs, alterations, improvements, renewals or replacements to such Facility’s building’s structure the Hotel's buildings' structure, roof, or exterior façade facade, or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems. Any additional Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and any Hotel Mortgagee to assist Landlord and such Hotel Mortgagee in establishing or perfecting its security interest in Landlord's residual interest in the funds required which are in the FF&E Reserve, it being acknowledged and agreed that the funds in the FF&E Reserve are the property of Tenant; provided, however, that no such documentation shall contain any amendment or modification of any of the provisions of this Agreement. It is understood and agreed that, during the Term, the FF&E Reserve may not be applied against debts secured by a Hotel Mortgage nor shall any Hotel Mortgagee have the right to approve the release of such funds pursuant to the terms of this Agreement unless and until Landlord shall default in its obligations to such Hotel Mortgagee.
(b) Throughout the Term, Tenant shall transfer (as of the end of each month of the Term) into the FF&E Reserve an amount equal to five percent (5%) of Total Hotel Sales for repairssuch month. Together with the documentation provided to Landlord pursuant to Section 3.1.2(c), maintenance, renovations and replacements Tenant shall deliver to Landlord an Officer's Certificate setting forth the total amount of deposits made to and at any Senior Housing Property in excess expenditures from the FF&E Reserve for the preceding Fiscal Year, together with a reconciliation of those on deposit for such Property in expenditures with the applicable FF&E Reserve shall be advanced in accordance with Section 5.1.3(b). Tenant shall prepare, Estimate.
(c) Prior to execution of this Agreement with respect to the 1997 calendar year and, thereafter, each Senior Housing Propertyyear, on or before December 1 of the preceding year, Tenant shall prepare an estimate (the “"FF&E Estimate”") of FF&E Reserve expenditures necessary at such Property during the ensuing Fiscal Year, and shall submit such FF&E Estimate to Landlord, on or before December 1 of the preceding Lease Year, Landlord for its review and approval, which approval shall not be unreasonably withheld, delayed withheld or conditioneddelayed. In the event that Landlord shall fail to respond within thirty (30) days after receipt of the FF&E Estimate, such FF&E Estimate shall be deemed approved by Landlord. All expenditures from the FF&E Reserve shall be (as to both the amount of each such expenditure and the timing thereof) both reasonable and necessary, given the objective that the Hotel will be maintained and operated to a standard comparable to competitive hotels.
(d) Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures from the FF&E Reserve to be applied to the cost of repairs, maintenance, renovations and replacements to and at such Property in accordance with this Agreement as it deems necessary provided that Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, which approval shall not be unreasonably withheld, delayed or conditioned, except in the case of emergency where immediate action is necessary to prevent imminent harm danger to person or property. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002, funds in the FF&E Reserve and all property purchased with those funds shall be the property of Landlord and all FF&E Reserve Payments shall constitute Additional Charges. After September 30, 2002, funds deposited in the FF&E Reserve and all property purchased with those funds deposited after September 30, 2002 shall be the property of Tenant. .
(e) Upon the expiration or sooner termination of this Agreement, funds in the FF&E Reserve and all property purchased with those funds from the FF&E Reserve during the Term shall be paid, granted and assigned to Landlord as Additional Charges. Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and/or any Superior Mortgagee to assist Landlord and/or any Superior Mortgagee in establishing or perfecting the Superior Mortgagee’s security interest in Landlord’s residual interest in the funds which are in the FF&E Reserve; provided, however, that no such documentation shall contain any amendment to or modification of any of the provisions of this Agreement.
Appears in 1 contract
FF&E Reserve. Certain Entities comprising Upon or prior to the execution of this Agreement, Landlord have previously has established the FF&E Reserve for each Senior Housing Property. Tenant shall, as Additional Charges, with respect to each Lease Year, or portion thereof, deposit, or cause to be deposited, the FF&E Reserve Payment into the FF&E Reserve for each Senior Housing Property, of which amounts shall be applied to (a) replacements and renewals to such Property’s 's furniture, furnishings, fixtures, soft goodsSoft Goods (as such term is defined in the MSLS Operating Agreements), case goodsCase Goods (as such term is defined in the MSLS Operating Agreements), vehicles and equipment, but specifically excluding any fixed asset supplies Fixed Asset Supplies (as such term is defined in the MSLS Operating Agreements) or softwareSoftware (as such term is defined in the MSLS Operating Agreements), and (b) routine repairs and maintenance to the Facility located on such Property which are normally capitalized under GAAP, such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not major repairs, alterations, improvements, renewals or replacements to such Facility’s 's building’s 's structure or exterior façade facade or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems. Any additional funds required for repairs, maintenance, renovations and replacements to and at any Senior Housing Property in excess of those on deposit for such Property in the applicable FF&E Reserve shall be advanced in accordance with Section SECTION 5.1.3(b). So long as the MSLS Operating Agreement remains in effect with a Property, Tenant shall prepareshall, promptly after receipt or sending thereof, furnish to Landlord copies of the FF&E Estimate (as such term is defined in the MSLS Operating Agreements) submitted by MSLS under such MSLS Operating Agreement, together with any and all other documentation submitted by MSLS in connection therewith, and Tenant's responses thereto, if any. If a MSLS Operating Agreement terminates with respect to each Senior Housing a Property, thereafter, Tenant shall prepare with respect to such Property an estimate (the “"FF&E Estimate”ESTIMATE") of FF&E Reserve expenditures necessary at such Property during the ensuing Fiscal Year, and shall submit such FF&E Estimate to Landlord, on or before December 1 of the preceding Lease Year, for its review and approval, which approval shall not be unreasonably withheld, delayed or conditioned. In the event that Landlord shall fail to respond within thirty (30) days after receipt of the FF&E Estimate, such FF&E Estimate shall be deemed approved by Landlord. Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures from the FF&E Reserve to be applied to the cost of repairs, maintenance, renovations and replacements to and at such Property in accordance with this Agreement provided that Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, which approval shall not be unreasonably withheld, delayed or conditioned, except in the case of emergency where immediate action is necessary to prevent imminent harm to person or property. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002, funds Funds in the FF&E Reserve and all property purchased with those funds from the FF&E Reserve during the Term shall be the property of Landlord and all FF&E Reserve Payments shall constitute Additional Charges. After September 30, 2002, funds deposited in the FF&E Reserve and all property purchased with those funds deposited after September 30, 2002 shall be the property of Tenant. Upon the expiration or sooner termination of this Agreement, funds in the FF&E Reserve and all property purchased with those funds during the Term shall be paid, granted and assigned to Landlord as Additional Charges. Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and/or any Superior Mortgagee to assist Landlord and/or any Superior Mortgagee in establishing or perfecting the Superior Mortgagee’s security interest in Landlord’s residual interest in the funds which are in the FF&E Reserve; provided, however, that no such documentation shall contain any amendment to or modification of any of the provisions of this Agreement.
Appears in 1 contract
Samples: Master Lease Agreement (Five Star Quality Care Inc)
FF&E Reserve. Certain Entities comprising Landlord have previously established A. Operator shall establish a reserve account (the "FF&E Reserve for each Senior Housing PropertyReserve") in a bank designated by Operator and approved by Owner (which approval shall not be unreasonably withheld) to cover the cost of:
1. Tenant shall, as Additional Charges, with respect to each Lease Year, or portion thereof, deposit, or cause to be deposited, the FF&E Reserve Payment into the FF&E Reserve for each Senior Housing Property, of which amounts shall be applied to (a) replacements Replacements and renewals to such Property’s furniture, furnishings, fixtures, soft goods, case goods, vehicles and equipment, but specifically excluding any fixed asset supplies or software, and (b) the Retirement Community's FF&E; and
2. Certain routine repairs and maintenance to the Facility located on such Property Retirement Community building which are normally capitalized under GAAP, GAAP such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not major repairs, alterations, improvements, renewals or replacements to such Facility’s the Retirement Community building’s 's structure or exterior façade facade or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems, the cost of which shall be governed exclusively by Section 8.03. Any additional funds -------------------------------------------------------------------------------- OPERATING AGREEMENT PAGE 36
B. Throughout the Term, Operator shall transfer into the FF&E Reserve the amounts required for repairs, maintenance, renovations in Section 8.02E and replacements to and at any Senior Housing Property in excess of those on deposit for such Property in F (the applicable "FF&E Reserve Payment"). All amounts transferred into the FF&E Reserve shall be advanced in accordance with Section 5.1.3(b). Tenant paid from Gross Revenues and shall prepareconstitute Operating Expenses.
C. Each year, with respect to each Senior Housing Propertyat the same time as Operator submits the Annual Operating Projection, Operator shall prepare an estimate (the “"FF&E Estimate”") of FF&E Reserve the expenditures necessary at such Property for (i) replacements and renewals to the Retirement Community's FF&E, and (ii) repairs to the Retirement Community of the nature described in Section 8.02A2, during the ensuing Fiscal Year, and shall submit such FF&E Estimate to Landlord, on or before December 1 of the preceding Lease Year, Owner for its review and approval, which approval review. Operator shall not be unreasonably withheld, delayed or conditionedalso prepare tentative forecasts of such expenditures with regard to the four (4) subsequent Fiscal Years. Operator will at all times give good faith consideration to Owner's suggestions regarding any FF&E Estimate. In the event that Landlord shall fail such forecasts project a deficit in the FF&E Reserve at some point during the current Fiscal Year or during such four (4) subsequent Fiscal Years, Owner and Operator will work together in good faith to respond within thirty (30) days after receipt prepare alternative forecasts for such Fiscal Years which will reduce or eliminate such deficit, but also take into account the needs of the Retirement Community during such periods of time. All expenditures from the FF&E EstimateReserve will be (as to both the amount of each such expenditure and timing thereof) both reasonable and necessary, such FF&E Estimate shall given the objective that the Retirement Community will be deemed approved by Landlord. Tenant shall, consistent maintained and operated in accordance with the FF&E Estimate approved by Landlord, Marriott Standards.
D. Operator shall from time to time make expenditures from such (1) replacements and renewals to the Retirement Community's FF&E, and (2) repairs to the Retirement Community of the nature described in Section 8.02A2, as it deems necessary, provided that Operator shall not expend more than the balance in the FF&E Reserve to be applied to the cost of repairs, maintenance, renovations and replacements to and at such Property in accordance with this Agreement provided that Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of LandlordOwner. Operator will endeavor to follow the applicable FF&E Estimate, but shall be entitled to depart therefrom, in its reasonable discretion, provided that: (A) such departures from the applicable FF&E Estimate result from circumstances which approval shall could not be unreasonably withheld, delayed reasonably have been foreseen at the time of the submission of such FF&E Estimate; and (B) such departures from the applicable FF&E Estimate result from circumstances which require prompt repair and/or replacement or conditioned, except in the case of emergency where immediate action is are necessary to prevent imminent harm comply with Legal Requirements; and (C) Operator has submitted to person or propertyOwner a revised FF&E Estimate setting forth and explaining such departures. All At the end of each Fiscal Year, any amounts from remaining in the FF&E Reserve shall be paid retained in the FF&E Reserve, and shall be carried forward to Persons who are not Affiliated Persons the next Fiscal Year. Upon a Sale of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002the Retirement Community, funds in the FF&E Reserve will not be affected (or, if withdrawn, will be replaced as set forth in Section 18.01G), and all property purchased with those dispositions of such funds shall (both before and after such Sale of the Retirement Community) will continue to be the property of Landlord and all FF&E Reserve Payments shall constitute Additional Charges. After September 30, 2002, funds deposited in the FF&E Reserve and all property purchased with those funds deposited after September 30, 2002 shall be the property of Tenant. Upon the expiration or sooner termination of this Agreement, funds in the FF&E Reserve and all property purchased with those funds during the Term shall be paid, granted and assigned made exclusively pursuant to Landlord as Additional Charges. Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and/or any Superior Mortgagee to assist Landlord and/or any Superior Mortgagee in establishing or perfecting the Superior Mortgagee’s security interest in Landlord’s residual interest in the funds which are in the FF&E Reserve; provided, however, that no such documentation shall contain any amendment to or modification of any of the provisions of this Agreement. Proceeds from the sale of FF&E no longer necessary to the operation of the Retirement Community shall be deposited in the FF&E Reserve, as shall any interest which accrues on amounts placed in the FF&E Reserve. Neither (i) proceeds from the disposition of FF&E, nor (ii) interest which accrues on amounts held in the FF&E Reserve, shall either (x) result in any reduction in the required contributions to the FF&E Reserve set forth in subsection B above, or (y) be included in Gross Revenues. The only items of FF&E which Operator is authorized to lease (rather than purchase) shall be telephones, office equipment (such as copiers and the like), and shuttle vans. If Operator enters into a lease described in the preceding sentence, Operator -------------------------------------------------------------------------------- OPERATING AGREEMENT PAGE 37 shall give Owner notice of such lease either prior to or promptly after entering into such lease. Lease payments with respect to telephones and office equipment shall be Operating Expenses; lease payments with respect to shuttle vans shall be paid from the FF&E Reserve. If Operator proposes that items of FF&E other than telephones and office equipment or shuttle vans should be leased rather than purchased, Operator shall submit such proposal (which proposal shall include, without limitation, an indication as to whether the rental which is owed under such lease will be treated as an Operating Expense or paid from the FF&E Reserve) to Owner for Owner's approval (not to be unreasonably withheld). In connection with the foregoing, it is understood that the failure of a Qualified Lender to approve such leasing proposal shall justify Owner in withholding its approval thereof, regardless of whether withholding such approval would otherwise be deemed to be unreasonable.
E. The amount of the FF&E Reserve Payment shall be determined as follows:
1. Two and sixty-five one hundredths percent (2.65%) of Gross Revenues during the period from the Effective Date to the expiration of the Fiscal Year 2002;
2. Two and eighty-five one hundredths percent (2.85%) of Gross Revenues during the period from the first day of the Fiscal Year 2003 to the last day of the Fiscal Year 2007;
3. Three and one-half percent (3.5%) of Gross Revenues during the period from the first day of Fiscal Year 2008 to the last day of the Term.
F. The percentage contribution for the FF&E Reserve which is described in Section 8.02E is an estimate based upon Operator's prior experience with other comparable retirement communities. As the Retirement Community ages, this percentage may not be sufficient to keep the FF&E Reserve at the levels necessary to make the replacements and renewals to the Retirement Community's FF&E, or to make the repairs to the Retirement Community of the nature described in Section 8.02A2, which are required to maintain the Retirement Community in accordance with the Marriott Standards. If any FF&E Estimate which is prepared in accordance with Section 8.02C would require funding in excess of the applicable percentage of Gross Revenues which is set forth in Section 8.02E above, Owner may either:
1. Agree to increase the percentages of Gross Revenues set forth in Section 8.02E up to the level set forth in such FF&E Estimate, in order to provide the additional funds required, such increases to be treated as Operating Expenses, or
2. Make a lump-sum contribution to the FF&E Reserve in the necessary amount (in which case such lump-sum contribution plus interest (at the Prime Rate plus one percentage point (1%) per annum), shall be reimbursed to Owner from Gross Revenues in equal installments over the period of the next five (5) calendar years beginning as of the date of such contribution, and such installment repayments shall be an Operating Expense). If Owner elects not to agree to either option 1 or option 2 above (or Owner does not respond with respect to either option) within thirty (30) Days after the submission of such FF&E Estimate (or, if Owner has elected option 2, if Owner fails to fund the required amount within a sixty (60) Day period after the date of such election), Operator shall be entitled, at its option, to -------------------------------------------------------------------------------- OPERATING AGREEMENT PAGE 38 terminate this Agreement upon one hundred and twenty (120) Days' written notice to Owner (with a copy to each Qualified Lender); however, such failure by Owner shall not be deemed a Default by Owner under Article 16, and Operator shall not be entitled to any remedies with respect to such failure other than such termination of this Agreement. If Operator so elects to terminate this Agreement, it shall notify Owner of such election within the sixty (60) Day period following either: (x) the date of receipt of Owner's election not to agree to either option 1 or option 2 above, or the expiration of the aforesaid thirty (30) Day period without Owner making an election with respect to either option; or (y) if Owner has elected option 2, the date of the expiration of the aforesaid sixty (60) Day period without Owner funding the required amount. However, if Owner elects not to fund an FF&E Estimate that is specifically needed to meet Legal Requirements, such failure shall constitute a Default under Article 16 and Operator shall have recourse to all the remedies therein specified.
Appears in 1 contract
FF&E Reserve. Certain Entities comprising Landlord have previously established the FF&E Reserve for each Senior Housing Property. Tenant shall, as Additional Charges, with respect to each Lease Year, or portion thereof, deposit, or cause to be deposited, the FF&E Reserve Payment into the FF&E Reserve for each Senior Housing Property, of which amounts shall be applied to (ai) replacements Replacements and renewals to such Property’s furniture, the Hotel's furnishings, fixtures, soft goods, case goods, vehicles fixtures and equipment, but specifically excluding any fixed asset supplies or software, and ;
(bii) Certain routine repairs and maintenance to the Facility located on such Property Hotel building which are normally capitalized under GAAP, GAAP such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not major ; and (iii) Major repairs, alterations, improvements, renewals or replacements to such Facility’s building’s structure the Hotel's buildings' structure, roof, or exterior façade facade, or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems. Any additional funds required for repairsTenant agrees that it will, maintenancefrom time to time, renovations execute such reasonable documentation as may be requested by Landlord and replacements any Hotel Mortgagee to assist Landlord and at any Senior Housing Property such Hotel Mortgagee in excess of those on deposit for such Property establishing or perfecting its security interest in Landlord's residual interest in the applicable funds which are in the FF&E Reserve, it being acknowledged and agreed that the funds in the FF&E Reserve are the property of Tenant; provided, however, that no such documentation shall contain any amendment or modification of any of the provisions of this Agreement. It is understood and agreed that, during the Term, the FF&E Reserve may not be advanced applied against debts secured by a Hotel Mortgage nor shall any Hotel Mortgagee have the right to approve the release of such funds pursuant to the terms of this Agreement unless and until Landlord shall default in accordance with Section 5.1.3(b). its obligations to such Hotel Mortgagee.
(c) Each year, on or before December 1 of the preceding year, Tenant shall prepare, with respect to each Senior Housing Property, prepare an estimate (the “"FF&E Estimate”") of FF&E Reserve expenditures necessary at such Property during the ensuing Fiscal Year, and shall submit such FF&E Estimate to Landlord, on or before December 1 of the preceding Lease Year, Landlord for its review and approval, which approval shall not be unreasonably withheld, delayed withheld or conditioneddelayed. In the event that Landlord shall fail to respond within thirty (30) days after receipt of the FF&E Estimate, such FF&E Estimate shall be deemed approved by Landlord. All expenditures from the FF&E Reserve shall be (as to both the amount of each such expenditure and the timing thereof) both reasonable and necessary, given the objective that the Hotel will be maintained and operated to a standard comparable to competitive hotels.
(d) Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures from the FF&E Reserve to be applied to the cost of repairs, maintenance, renovations and replacements to and at such Property in accordance with this Agreement as it deems necessary provided that Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, which approval shall not be unreasonably withheld, delayed or conditioned, except in the case of emergency where immediate action is necessary to prevent imminent harm danger to person or property. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002, funds in the FF&E Reserve and all property purchased with those funds shall be the property of Landlord and all FF&E Reserve Payments shall constitute Additional Charges. After September 30, 2002, funds deposited in the FF&E Reserve and all property purchased with those funds deposited after September 30, 2002 shall be the property of Tenant. .
(e) Upon the expiration or sooner termination of this Agreement, funds in the FF&E Reserve and all property purchased with those funds from the FF&E Reserve during the Term shall be paid, granted and assigned to Landlord as Additional Charges. Tenant agrees .
(f) It is understood and agreed that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and/or any Superior Mortgagee to assist Landlord and/or any Superior Mortgagee in establishing or perfecting the Superior Mortgagee’s security interest in Landlord’s residual interest in the funds which are in the FF&E Reserve; provided, however, that no such documentation Reserve pursuant to this Agreement and the Other Leases shall contain any amendment to or modification of any of the provisions of this Agreementbe maintained on a consolidated basis.
Appears in 1 contract
Samples: Lease Agreement (Wyndham Hotel Corp)
FF&E Reserve. Certain Entities comprising Landlord have previously (a) Tenant has established a reserve account (the "FF&E Reserve") for each Hotel in the FF&E Bank. The purpose of the FF&E Reserve for each Senior Housing Property. Tenant shall, as Additional Charges, with respect is to each Lease Year, or portion thereof, deposit, or cause to be deposited, cover the FF&E Reserve Payment into the FF&E Reserve for each Senior Housing Property, of which amounts shall be applied to cost of:
(ai) replacements Replacements and renewals to such Property’s furniture, any Hotel's furnishings, fixtures, soft goods, case goods, vehicles fixtures and equipment, but specifically excluding any fixed asset supplies or software, and ;
(bii) Certain routine repairs and maintenance to the Facility located on such Property any Hotel building which are normally capitalized under GAAP, GAAP such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not major ; and
(iii) Major repairs, alterations, improvements, renewals or replacements to such Facility’s building’s structure any Hotel's buildings' structure, roof, or exterior façade facade, or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems. Any additional Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and any Hotel Mortgagee to assist Landlord and such Hotel Mortgagee in establishing or perfecting the Hotel Mortgagee's security interest in Landlord's residual interest in the funds required which are in the FF&E Reserve, it being acknowledged and agreed that the funds in the FF&E Reserve are the property of Tenant; provided, however, that no such documentation shall contain any amendment to or modification of any of the provisions of this Agreement. It is understood and agreed that, during the Term, the FF&E Reserve may not be applied against debts secured by a Hotel Mortgage nor shall any Hotel Mortgagee have the right to approve the release of such funds pursuant to the terms of this Agreement unless and until Landlord shall default in its obligations to such Hotel Mortgagee.
(b) Throughout the Term, Tenant shall transfer (as of the end of each month of the Term) into the FF&E Reserve an amount equal to five percent (5%) of aggregate Total Hotel Sales for repairsthe Leased Property for such month. Together with the documentation provided to Landlord pursuant to Section 3.1.2(c), maintenance, renovations and replacements Tenant shall deliver to Landlord an Officer's Certificate setting forth the total amount of deposits made to and at any Senior Housing Property in excess expenditures from the FF&E Reserve for the preceding Fiscal Year, together with a reconciliation of those on deposit for such Property in expenditures with the applicable FF&E Reserve shall be advanced in accordance with Section 5.1.3(b). Tenant shall prepare, with respect to each Senior Housing Property, an estimate Estimate.
(the “FF&E Estimate”c) of FF&E Reserve expenditures necessary at such Property during the ensuing Fiscal Year, and shall submit such FF&E Estimate to LandlordEach year, on or before December 1 of the preceding Lease Yearyear, Tenant shall prepare an estimate (the "FF&E Estimate") of FF&E Reserve expenditures necessary during the ensuing calendar year and shall submit such FF&E Estimate to Landlord for its review and approval, which approval shall not be unreasonably withheld, delayed withheld or conditioneddelayed. In the event that Landlord shall fail to respond within thirty (30) days after receipt of the FF&E Estimate, such FF&E Estimate shall be deemed approved by Landlord. All expenditures from the FF&E Reserve shall be (as to both the amount of each such expenditure and the timing thereof) both reasonable and necessary, given the objective that each Hotel will be maintained and operated to a standard comparable to competitive hotels. All expenditures from the FF&E Reserve may only be used to pay expenditures entered into on an "arm's length" basis with Persons that are not Affiliated Persons of Tenant, in each case without mark-up or the payment of allocated internal costs of Texxxx or any Affiliated Person (except for a purchasing fee that may be paid to an Affiliated Person of Tenant in respect of any item purchased with funds from the FF&E Reserve in an amount not to exceed 3.5% of the lower of cost or the fair market value of such item).
(d) Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures from the FF&E Reserve to be applied to the cost of repairs, maintenance, renovations and replacements to and at such Property in accordance with this Agreement as it deems necessary provided that Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, which approval shall not be unreasonably withheld, delayed or conditioned, except in the case of emergency where immediate action is necessary to prevent imminent harm danger to person or property. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002, funds in the FF&E Reserve and all property purchased with those funds shall be the property of Landlord and all FF&E Reserve Payments shall constitute Additional Charges. After September 30, 2002, funds deposited in the FF&E Reserve and all property purchased with those funds deposited after September 30, 2002 shall be the property of Tenant. .
(e) Upon the expiration or sooner termination of this Agreement, funds in the FF&E Reserve and all property purchased with those funds from the FF&E Reserve during the Term shall be paid, granted and assigned to Landlord as Additional Charges. Tenant agrees that it will.
(f) The FF&E Funded Amount, from time together with amounts transferred into the FF&E Reserve in accordance with Section 5.1.2(b) hereof during the 1998 calendar year, shall be used to time, execute such reasonable documentation as may be requested by Landlord and/or any Superior Mortgagee to assist Landlord and/or any Superior Mortgagee in establishing or perfecting fund the Superior Mortgagee’s security interest in Landlord’s residual interest in the funds which are expenditures identified in the FF&E Reserve; providedEstimate for the 1998 calendar year, however, that no such documentation shall contain any amendment and to or modification the extent of any of the provisions of this Agreementexcess, subsequent years.
Appears in 1 contract
Samples: Master Lease Agreement (Hospitality Properties Trust)
FF&E Reserve. Certain Entities comprising Landlord (a) On each Payment Date beginning December 9, 2010, a portion of the Rents that have previously established been deposited into the Borrower Deposit Account during the immediately preceding Interest Period in an amount equal to the FF&E Deposit Amount shall be transferred by Lender into a Subaccount (the “FF&E Reserve for Subaccount”).
(b) In addition, commencing with the February 2011 Payment Date and on each Senior Housing Property. Tenant shallPayment Date thereafter occurring in February, as Additional ChargesMay, with respect to each Lease YearAugust and November, or portion thereof, deposit, or cause to be deposited, either (i) the FF&E Reserve Payment Lender True-Up Amount shall be transferred by Lender into the FF&E Reserve for each Senior Housing Property, of which amounts Subaccount from the Rents that have been deposited into the Deposit Account during the immediately preceding Interest Period or (ii) the FF&E Borrower True-Up Amount shall be applied to (a) replacements and renewals to such Property’s furniture, furnishings, fixtures, soft goods, case goods, vehicles and equipment, but specifically excluding any fixed asset supplies or software, and (b) routine repairs and maintenance transferred by Lender to the Facility located on such Property which are normally capitalized under GAAP, such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not major repairs, alterations, improvements, renewals or replacements to such Facility’s building’s structure or exterior façade or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems. Any additional funds required for repairs, maintenance, renovations and replacements to and at any Senior Housing Property in excess of those on deposit for such Property in the applicable FF&E Reserve shall be advanced in accordance with Section 5.1.3(b). Tenant shall prepare, with respect to each Senior Housing Property, an estimate (the “FF&E Estimate”) of FF&E Reserve expenditures necessary at such Property during the ensuing Fiscal Year, and shall submit such FF&E Estimate to Landlord, on or before December 1 of the preceding Lease Year, for its review and approval, which approval shall not be unreasonably withheld, delayed or conditioned. In the event that Landlord shall fail to respond within thirty (30) days after receipt of the FF&E Estimate, such FF&E Estimate shall be deemed approved by Landlord. Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures Borrower from the FF&E Reserve to be applied to the cost Subaccount.
(c) Provided that no Event of repairsDefault has occurred and is continuing, maintenance, renovations and replacements to and at such Property in accordance with this Agreement provided that Tenant Lender shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, which approval shall not be unreasonably withheld, delayed or conditioned, except in the case of emergency where immediate action is necessary to prevent imminent harm to person or property. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002, disburse funds held in the FF&E Reserve Subaccount to Borrower, within five (5) Business Days after the delivery by Borrower to Lender of a request therefor (but not more often than twice per month), in increments of at least $5,000 provided that (i) such disbursement is for an Approved FF&E Expense or an Approved Capital Expense (other than Identified Capital Expenses) and all property purchased (ii) the request for disbursement is accompanied by an Officer’s Certificate certifying (1) that such funds will be used to pay or reimburse Borrower for Approved FF&E Expenses or Approved Capital Expenses (other than Identified Capital Expenses) and a description thereof, (2) with those funds shall be the property of Landlord and all FF&E Reserve Payments shall constitute Additional Charges. After September 30, 2002, funds deposited in the FF&E Reserve and all property purchased with those funds deposited after September 30, 2002 shall be the property of Tenant. Upon the expiration or sooner termination of this Agreement, funds in the FF&E Reserve and all property purchased with those funds during the Term shall be paid, granted and assigned respect to Landlord as Additional Charges. Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and/or any Superior Mortgagee to assist Landlord and/or any Superior Mortgagee in establishing or perfecting the Superior Mortgagee’s security interest in Landlord’s residual interest in the funds which are in the FF&E Reserve; provided, howeverdisbursements for Approved Capital Expenses (other than Identified Capital Expenses), that no material outstanding trade payables (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) are delinquent, (3) that the same has not been the subject of a previous disbursement, and (4) that all previous disbursements have been used to pay the previously identified Approved FF&E Expenses or Approved Capital Expenses (other than Identified Capital Expenses), as applicable. During a Cash Trap Period, any such documentation shall contain any amendment disbursement of more than $10,000 to pay (rather than reimburse) Approved FF&E Expenses or modification of any of Approved Capital Expenses (other than Identified Capital Expenses) may, at Lender’s option, be made by joint check payable to Borrower and the provisions of this Agreementpayee on such Approved FF&E Expenses or Approved Capital Expenses.
Appears in 1 contract
Samples: Loan Agreement (Behringer Harvard Opportunity REIT II, Inc.)
FF&E Reserve. Certain Entities comprising Landlord have previously established Commencing on February 1, 2016 and on each Payment Date thereafter, Borrower shall fund and maintain a capital expenditure, furniture, fixtures and equipment reserve ("FF&E Reserve") by depositing with Lender an amount equal to two percent (2%) of Gross Revenue on each Payment Date through and including July, 2016; (ii) three percent (3%) of Gross Revenue on each Payment Date from August, 2016 through and including January, 2017; and (iii) four percent (4%) of Gross Revenue on each Payment Date from February, 2017 and thereafter. So long as no Event of Default hereunder or under the other Loan Documents has occurred and is continuing, all sums in the FF&E Reserve for each Senior Housing Property. Tenant shalland disbursed to Borrower (pursuant to the terms hereof, as Additional Charges, with respect to each Lease Year, or portion thereof, deposit, or cause to including Section 3.1) shall be deposited, held by Lender in the FF&E Reserve Payment into to pay the FF&E Reserve for each Senior Housing Propertycosts and expenses of capital improvements projects, replacement and maintenance of which amounts shall be applied to (a) replacements and renewals to such Property’s furniture, furnishings, fixturesfixtures and equipment to fully equip the Property as set forth in the Approved Budget (collectively, soft goods"FF&E Work"). So long as no Event of Default hereunder or under the other Loan Documents has occurred and is continuing, case goodsLender shall, vehicles and equipment, but specifically excluding any fixed asset supplies or software, and (b) routine repairs and maintenance to the Facility located on such Property which extent funds are normally capitalized under GAAP, such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not major repairs, alterations, improvements, renewals or replacements to such Facility’s building’s structure or exterior façade or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems. Any additional funds required for repairs, maintenance, renovations and replacements to and at any Senior Housing Property in excess of those on deposit available for such Property purpose in the applicable FF&E Reserve, disburse to Borrower the amount paid or incurred by Borrower in performing such FF&E Work within ten (10) days following the satisfaction of all the following conditions:
(i) the receipt by Lender of a written request from Borrower for disbursement from the FF&E Reserve shall be advanced in accordance with Section 5.1.3(b). Tenant shall prepare, with respect to each Senior Housing Property, an estimate (the “FF&E Estimate”) form attached hereto as Exhibit E and a certification from Borrower that the applicable item of FF&E Reserve expenditures necessary at such Property during Work has been completed;
(ii) the ensuing Fiscal Yeardelivery to Lender of invoices, receipts or other evidence satisfactory to Lender verifying the cost of performing the FF&E Work (or portion thereof) to be reimbursed;
(iii) the delivery to Lender of conditional lien waivers (and shall submit such FF&E Estimate to Landlord, on or before December 1 of the preceding Lease Year, for its review and approval, which approval shall not be unreasonably withheld, delayed or conditioned. In the event that Landlord shall fail to respond within thirty (30) days after receipt disbursement of the FF&E Estimate, such FF&E Estimate shall be deemed approved by Landlord. Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures funds from the FF&E Reserve to be applied Borrower, Borrower shall deliver to Lender affidavits, lien waivers or other evidence reasonably satisfactory to Lender ("Final Releases") showing that all materialmen, laborers, subcontractors and any other parties who might or could claim statutory or common law liens and have furnished material or labor with respect to the FF&E Work for which the disbursement is requested have been paid all amounts due for labor and materials for such job);
(iv) the delivery to Lender of a certification from an inspecting architect or other third party acceptable to Lender describing the completed FF&E Work for such job and verifying the completion of the FF&E Work for such job and the cost of repairsthe completed FF&E Work for such job;
(v) the delivery to Lender of a new certificate of occupancy or temporary certificate of occupancy for the portion of the Improvements covered by such FF&E Work, maintenanceif said new certificate of occupancy is required by law, renovations or a certification by Borrower that no new certificate of occupancy is required;
(vi) the receipt by Lender of the actual out of pocket costs incurred by Lender in connection with each disbursement;
(vii) the receipt by Lender of an administrative fee in the amount of Five Hundred Dollars ($500); and
(viii) the delivery to Lender of a certificate, in form and replacements substance acceptable to Lender in its reasonable discretion, whereby Borrower certifies that all representations and warranties set forth in the Loan Documents are true and correct as of the date of such certificate. Lender shall not be required to make advances from the FF&E Reserve more frequently than once in any thirty (30) day period. In making any payment from the FF&E Reserve, Lender shall be entitled to rely on such request from Borrower without any inquiry into the accuracy, validity or contestability of the certifications or other information provided by Borrower (but reserves the right to withhold any such payment if it reasonably determines that any such certification, or other information is inaccurate). Lender shall not be required to make any future payment from the FF&E Reserve until all Final Releases for prior FF&E Work are delivered to Lender. Lender may, at Borrower's expense, make or cause to be made during the term of the Loan inspections at the Property to determine the need, as determined by Lender in its reasonable judgment, for further FF&E Work of the Property. In the event that such inspection reveals that further FF&E Work of the Property are reasonably required, Lender shall provide Borrower with a written description of the required FF&E Work and Borrower shall complete such FF&E Work to the reasonable satisfaction of Lender within ninety (90) days after the receipt of such description from Lender, or such later date as may be approved by Lender in its reasonable discretion. The FF&E Reserve is solely for the protection of Lender and entails no responsibility on Lender's part beyond the payment of the costs and expenses described in this Section in accordance with this Agreement provided the terms hereof and beyond the allowing of due credit for the sums actually received. In the event that Tenant shall not materially deviate from the amounts on deposit or available in the FF&E Estimate approved Reserve are inadequate to pay the cost of the FF&E Work, Borrower shall pay promptly the amount of such deficiency. Upon assignment of the Loan by Landlord without the prior approval of LandlordLender, which approval shall not be unreasonably withheld, delayed or conditioned, except any funds in the case of emergency where immediate action is necessary to prevent imminent harm to person or property. All amounts from the FF&E Reserve shall be paid turned over to Persons who are not Affiliated Persons the assignee and any responsibility of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated PersonsLender, as assignor, with respect thereto shall terminate. On and before September 30, 2002, funds Funds in the FF&E Reserve and all property purchased with those funds shall only be used for the property purpose set forth in this Section, except that if there is an Event of Landlord and all FF&E Reserve Payments Default under the Loan Documents, Lender may, but shall constitute Additional Charges. After September 30not be obligated to, 2002, funds deposited apply at any time that such Event of Default is continuing the balance then remaining in the FF&E Reserve and all property purchased with those funds deposited after September 30, 2002 against the indebtedness secured hereby in whatever order Lender shall subjectively determine. No such application of the FF&E Reserve shall be the property deemed to cure any Default or Event of TenantDefault hereunder. Upon full payment of the expiration indebtedness secured hereby in accordance with its terms or sooner termination at such earlier time as Lender may elect, the balance of this Agreementthe FF&E Reserve then in Lender's possession shall be paid over to Borrower and no other party shall have any right or claim thereto. The FF&E Reserve shall not, unless otherwise explicitly required by applicable law, be or be deemed to be escrow or trust funds, but, at Lender's option and in Lender's discretion, may either be held in a separate account or be commingled by Lender with the general funds of Lender or Lender's loan servicer. Borrower understands and agrees that, notwithstanding the establishment of the FF&E Reserve as herein required, all of the proceeds of the Note have been, and shall be considered, fully disbursed and shall bear interest and be payable on the terms provided therein. Borrower grants to Lender a first priority security interest in all funds on deposit in the FF&E Reserve to secure its obligations under the Loan Documents. Borrower shall execute any and all property purchased with those funds during the Term documents or agreements, and take such actions, as Lender in its good faith reasonably deems necessary or advisable to ensure that Lender shall be paid, granted and assigned to Landlord as Additional Charges. Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and/or any Superior Mortgagee to assist Landlord and/or any Superior Mortgagee in establishing or perfecting the Superior Mortgagee’s at all times retain a first-priority perfected security interest in Landlord’s residual interest in the funds which are in the FF&E Reserve; provided, however, that no such documentation shall contain any amendment to or modification of any of the provisions of this Agreement.
Appears in 1 contract
Samples: Loan Agreement (IMH Financial Corp)
FF&E Reserve. Certain Entities comprising Landlord have previously established A. Operator shall establish a reserve account (the "FF&E Reserve for each Senior Housing PropertyReserve") in a bank designated by Operator and approved by Owner (which approval shall not be unreasonably withheld) to cover the cost of:
1. Tenant shall, as Additional Charges, with respect to each Lease Year, or portion thereof, deposit, or cause to be deposited, the FF&E Reserve Payment into the FF&E Reserve for each Senior Housing Property, of which amounts shall be applied to (a) replacements Replacements and renewals to such Property’s furniture, furnishings, fixtures, soft goods, case goods, vehicles and equipment, but specifically excluding any fixed asset supplies or software, and (b) the Retirement Community's FF&E and
2. Certain routine repairs and maintenance to the Facility located on such Property Retirement Community building which are normally capitalized under GAAP, GAAP such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not major repairs, alterations, improvements, renewals or replacements to such Facility’s the Retirement Community building’s 's structure or exterior façade facade or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems, the cost of which shall be governed exclusively by Section 8.03.
B. Throughout the Term, Operator shall transfer into the FF&E Reserve the amounts required in Section 8.02E and F (the "FF&E Reserve Payment"). Any additional funds required for repairs, maintenance, renovations and replacements to and at any Senior Housing Property in excess of those on deposit for such Property in All amounts transferred into the applicable FF&E Reserve shall be advanced in accordance with Section 5.1.3(b). Tenant paid from Gross Revenues and shall prepareconstitute Operating Expenses.
C. Each year, with respect to each Senior Housing Propertyat the same time as Operator submits the Annual Operating Projection, Operator shall prepare an estimate (the “"FF&E Estimate”") of FF&E Reserve the expenditures necessary at such Property for (i) replacements and renewals to the Retirement Community's FF&E, and (ii) repairs to the Retirement Community of the nature described in Section 8.02A2, during the ensuing Fiscal Year, and shall submit such FF&E Estimate to Landlord, on or before December 1 of the preceding Lease Year, Owner for its review and approval, which approval review. Operator shall not be unreasonably withheld, delayed or conditionedalso prepare tentative forecasts of such expenditures with regard to the four (4) subsequent Fiscal Years. Operator will at all times give good faith consideration to Owner's suggestions regarding any FF&E Estimate. In the event that Landlord shall fail such forecasts project a deficit in the FF&E Reserve at some point during the current Fiscal Year or during such four (4) subsequent Fiscal Years, Owner and Operator will work together in good faith to respond within thirty (30) days after receipt prepare alternative forecasts for such Fiscal Years which will reduce or eliminate such deficit, but also take into account the needs of the Retirement Community during such periods of time. All expenditures from the FF&E EstimateReserve will be (as to both the amount of each such expenditure and timing thereof) both reasonable and necessary, such FF&E Estimate shall given the objective that the Retirement Community will be deemed approved by Landlord. Tenant shall, consistent maintained and operated in accordance with the FF&E Estimate approved by Landlord, Marriott Standards.
D. Operator shall from time to time make expenditures from such (1) replacements and renewals to the Retirement Community's FF&E, and (2) repairs to the Retirement Community of the nature described in Section 8.02A2, as it deems necessary, provided that Operator shall not expend more than the balance in the FF&E Reserve to be applied to the cost of repairs, maintenance, renovations and replacements to and at such Property in accordance with this Agreement provided that Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of LandlordOwner. Operator will endeavor to follow the applicable FF&E Estimate, but shall be entitled to depart therefrom, in its reasonable discretion, provided that: (A) such departures from the applicable FF&E Estimate result from circumstances which approval shall could not be unreasonably withheld, delayed reasonably have been foreseen at the time of the submission of such FF&E Estimate; and (B) such departures from the applicable FF&E Estimate result from circumstances which require prompt repair and/or replacement or conditioned, except in the case of emergency where immediate action is are necessary to prevent imminent harm comply with Legal Requirements; and (C) Operator has submitted to person or propertyOwner a revised FF&E Estimate setting forth and explaining such departures. All At the end of each Fiscal Year, any amounts from remaining in the FF&E Reserve shall be paid retained in the FF&E Reserve, and shall be carried forward to Persons who are not Affiliated Persons the next Fiscal Year. Upon a Sale of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002the Retirement Community, funds in the FF&E Reserve will not be affected (or, if withdrawn, will be replaced as set forth in Section 18.01G), and all property purchased with those dispositions of such funds shall (both before and after such Sale of the Retirement Community) will continue to be the property of Landlord and all FF&E Reserve Payments shall constitute Additional Charges. After September 30, 2002, funds deposited in the FF&E Reserve and all property purchased with those funds deposited after September 30, 2002 shall be the property of Tenant. Upon the expiration or sooner termination of this Agreement, funds in the FF&E Reserve and all property purchased with those funds during the Term shall be paid, granted and assigned made exclusively pursuant to Landlord as Additional Charges. Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and/or any Superior Mortgagee to assist Landlord and/or any Superior Mortgagee in establishing or perfecting the Superior Mortgagee’s security interest in Landlord’s residual interest in the funds which are in the FF&E Reserve; provided, however, that no such documentation shall contain any amendment to or modification of any of the provisions of this Agreement. Proceeds from the sale of FF&E no longer necessary to the operation of the Retirement Community shall be deposited in the FF&E Reserve, as shall any interest which accrues on amounts placed in the FF&E Reserve. Neither (i) proceeds from the disposition of FF&E, nor (ii) interest which accrues on amounts held in the FF&E Reserve, shall either (x) result in any reduction in the required contributions to the FF&E Reserve set forth in subsection B above, or (y) be included in Gross Revenues. The only items of FF&E which Operator is authorized to lease (rather than purchase) shall be telephones, office equipment (such as copiers and the like), and shuttle vans. If Operator enters into a lease described in the preceding sentence, ------------------------------------------------------------------------------- FORM OF OPERATING AGREEMENT [DATE], PAGE 33 Operator shall give Owner notice of such lease either prior to or promptly after entering into such lease. Lease payments with respect to telephones and office equipment shall be Operating Expenses; lease payments with respect to shuttle vans shall be paid from the FF&E Reserve. If Operator proposes that items of FF&E other than telephones and office equipment or shuttle vans should be leased rather than purchased, Operator shall submit such proposal (which proposal shall include, without limitation, an indication as to whether the rental which is owed under such lease will be treated as an Operating Expense or paid from the FF&E Reserve) to Owner for Owner's approval (not to be unreasonably withheld). In connection with the foregoing, it is understood that the failure of a Qualified Lender to approve such leasing proposal shall justify Owner in withholding its approval thereof, regardless of whether withholding such approval would otherwise be deemed to be unreasonable.
E. The amount of the FF&E Reserve Payment shall be determined as follows:
1. Two and sixty-five one hundredths percent (2.65%) of Gross Revenues during the period from the Effective Date to the expiration of the Fiscal Year 2002;
2. Two and eighty-five one hundredths percent (2.85%) of Gross Revenues during the period from the first day of the Fiscal Year 2003 to the last day of the Fiscal Year 2007;
3. Three and one-half percent (3.5%) of Gross Revenues during the period from the first day of Fiscal Year 2008 to the last day of the Term.
F. The percentage contribution for the FF&E Reserve which is described in Section 8.02E is an estimate based upon Operator's prior experience with other comparable retirement communities. As the Retirement Community ages, this percentage may not be sufficient to keep the FF&E Reserve at the levels necessary to make the replacements and renewals to the Retirement Community's FF&E, or to make the repairs to the Retirement Community of the nature described in Section 8.02A2, which are required to maintain the Retirement Community in accordance with the Marriott Standards. If any FF&E Estimate which is prepared in accordance with Section 8.02C would require funding in excess of the applicable percentage of Gross Revenues which is set forth in Section 8.02E above, Owner may either:
1. Agree to increase the percentages of Gross Revenues set forth in Section 8.02E up to the level set forth in such FF&E Estimate, in order to provide the additional funds required, such increases to be treated as Operating Expenses, or
2. Make a lump-sum contribution to the FF&E Reserve in the necessary amount (in which case such lump-sum contribution plus interest (at the Prime Rate plus one percentage point (1%) per annum), shall be reimbursed to Owner from Gross Revenues in equal installments over the period of the next five (5) calendar years beginning as of the date of such contribution, and such installment repayments shall be an Operating Expense). If Owner elects not to agree to either option 1 or option 2 above (or Owner does not respond with respect to either option) within thirty (30) Days after the submission of such FF&E Estimate (or, if Owner has elected option 2, if Owner fails to fund the required amount within a sixty (60) Day period after the date of such election), Operator shall be entitled, at its option, to terminate this Agreement upon one hundred and twenty (120) Days' written notice to Owner (with a copy to each Qualified Lender); however, such failure by Owner shall not be deemed a Default by Owner under Article 16, and Operator shall not be entitled to any remedies with respect to such failure other than such termination of this Agreement. If Operator so elects to terminate this Agreement, it shall notify ------------------------------------------------------------------------------- FORM OF OPERATING AGREEMENT [DATE], PAGE 34 Owner of such election within the sixty (60) Day period following either: (x) the date of receipt of Owner's election not to agree to either option 1 or option 2 above, or the expiration of the aforesaid thirty (30) Day period without Owner making an election with respect to either option; or (y) if Owner has elected option 2, the date of the expiration of the aforesaid sixty (60) Day period without Owner funding the required amount. However, if Owner elects not to fund an FF&E Estimate that is specifically needed to meet Legal Requirements, such failure shall constitute a Default under Article 16 and Operator shall have recourse to all the remedies therein specified.
Appears in 1 contract
FF&E Reserve. Certain Entities comprising Landlord have previously (a) Upon execution of this Agreement, Tenant has established a reserve account (the "FF&E Reserve") in a bank designated by Tenant and approved by Landlord. The purpose of the FF&E Reserve for each Senior Housing Property. Tenant shall, as Additional Charges, with respect is to each Lease Year, or portion thereof, deposit, or cause to be deposited, cover the FF&E Reserve Payment into the FF&E Reserve for each Senior Housing Property, of which amounts shall be applied to cost of:
(ai) replacements Replacements and renewals to such Property’s furniture, any Hotel's furnishings, fixtures, soft goods, case goods, vehicles fixtures and equipment, but specifically excluding any fixed asset supplies or software, and ;
(bii) Certain routine repairs and maintenance to the Facility located on such Property any Hotel building which are normally capitalized under GAAP, GAAP such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not major ; and
(iii) Major repairs, alterations, improvements, renewals or replacements to such Facility’s building’s structure any Hotel's buildings' structure, roof, or exterior façade facade, or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems. Any additional Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and any Hotel Mortgagee to assist Landlord and such Hotel Mortgagee in establishing or perfecting the Hotel Mortgagee's security interest in Landlord's residual interest in the funds required which are in the FF&E Reserve; provided, however, that no such documentation shall contain any amendment to or modification of any of the provisions of this Agreement. It is acknowledged and agreed that, during the Term, funds in the FF&E Reserve are the property of Tenant.
(b) Throughout the Term, Tenant shall transfer (within ten (10) Business Days after the end of each Accounting Period during the Term) into the FF&E Reserve an amount equal to the Applicable Percentage of Total Hotel Sales for repairssuch Accounting Period. Together with the documentation provided to Landlord pursuant to Section 3.1.2(c), maintenance, renovations and replacements Tenant shall deliver to Landlord an Officer's Certificate setting forth the total amount of deposits made to and at any Senior Housing Property in excess expenditures from the FF&E Reserve for the preceding Fiscal Year, together with a reconciliation of those on deposit for such Property in expenditures with the applicable FF&E Reserve shall be advanced in accordance with Section 5.1.3(b). Tenant shall prepare, with Estimate.
(c) With respect to each Senior Housing PropertyLease Year, Tenant shall prepare an estimate (the “"FF&E Estimate”") of FF&E Reserve expenditures necessary at such Property during the ensuing Fiscal Year, and shall submit such FF&E Estimate to Landlord, on or before December 1 of the preceding Lease Year, for its review and approval, which approval shall not be unreasonably withheld, delayed or conditioned. In the event that Landlord shall fail to respond within thirty (30) days after receipt of the FF&E Estimate, such FF&E Estimate shall be deemed approved by Landlord. All expenditures from the FF&E Reserve shall be (as to both the amount of each such expenditure and the timing thereof) both reasonable and necessary, given the objective that the Hotels will be maintained and operated to a standard comparable to competitive hotels. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons.
(d) Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures from the FF&E Reserve to be applied to the cost of repairs, maintenance, renovations and replacements to and at such Property in accordance with this Agreement as it deems necessary provided that Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, which approval shall not be unreasonably withheld, delayed or conditioned, except in the case of emergency where immediate action is necessary to prevent imminent harm to person or property. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002, funds in the FF&E Reserve and all property purchased with those funds shall be the property of Landlord and all FF&E Reserve Payments shall constitute Additional Charges. After September 30, 2002, funds deposited in the FF&E Reserve and all property purchased with those funds deposited after September 30, 2002 shall be the property of Tenant. .
(e) Upon the expiration or sooner termination of this Agreement, funds in the FF&E Reserve and all property purchased with those funds from the FF&E Reserve during the Term shall be paid, granted and assigned to Landlord as Additional Charges. Tenant agrees that it will.
(f) Notwithstanding anything to the contrary set forth in this Agreement, from time to time, execute such reasonable documentation as no portion of the FF&E Reserve may be requested by Landlord and/or any Superior Mortgagee to assist Landlord and/or any Superior Mortgagee in establishing used for "punch-list" or perfecting other initial construction items, the Superior Mortgagee’s security interest in Landlord’s residual interest in cost of which shall be the funds which are in the FF&E Reserve; provided, however, that no such documentation shall contain any amendment to or modification sole responsibility of any of the provisions of this AgreementTenant and its Affiliated Persons.
Appears in 1 contract
FF&E Reserve. Certain Entities comprising Landlord have previously (a) Upon execution of this Agreement, Tenant has established a reserve account (the "FF&E Reserve") in a bank designated by Tenant and approved by Landlord. The purpose of the FF&E Reserve for each Senior Housing Property. Tenant shall, as Additional Charges, with respect is to each Lease Year, or portion thereof, deposit, or cause to be deposited, cover the FF&E Reserve Payment into the FF&E Reserve for each Senior Housing Property, of which amounts shall be applied to cost of:
(ai) replacements Replacements and renewals to such Property’s furniture, any Hotel's furnishings, fixtures, soft goods, case goods, vehicles fixtures and equipment, but specifically excluding any fixed asset supplies or software, and ;
(bii) Certain routine repairs and maintenance to the Facility located on such Property any Hotel building which are normally capitalized under GAAP, GAAP such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not major ; and
(iii) Major repairs, alterations, improvements, renewals or replacements to such Facility’s building’s structure any Hotel's buildings' structure, roof, or exterior façade facade, or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems. Any additional Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and any Hotel Mortgagee to assist Landlord and such Hotel Mortgagee in establishing or perfecting the Hotel Mortgagee's security interest in Landlord's residual interest in the funds required which are in the FF&E Reserve; provided, however, that no such documentation shall contain any amendment to or modification of any of the provisions of this Agreement. It is acknowledged and agreed that, during the Term, funds in the FF&E Reserve are the property of Tenant.
(b) Throughout the Term, Tenant shall transfer (within ten (10) Business Days after the end of each Accounting Period during the Term) into the FF&E Reserve an amount equal to the Applicable Percentage of Total Hotel Sales for repairssuch Accounting Period. Together with the documentation provided to Landlord pursuant to Section 3.1.2(c), maintenance, renovations and replacements Tenant shall deliver to Landlord an Officer's Certificate setting forth the total amount of deposits made to and at any Senior Housing Property in excess expenditures from the FF&E Reserve for the preceding Fiscal Year, together with a reconciliation of those on deposit for such Property in expenditures with the applicable FF&E Reserve shall be advanced in accordance with Section 5.1.3(b). Tenant shall prepare, with Estimate.
(c) With respect to each Senior Housing PropertyLease Year, Tenant shall prepare an estimate (the “"FF&E Estimate”") of FF&E Reserve expenditures necessary at such Property during the ensuing Fiscal Year, and shall submit such FF&E Estimate to Landlord, on or before December 1 of the preceding Lease Year, for its review and approval, which approval shall not be unreasonably withheld, delayed or conditioned. In the event that Landlord shall fail to respond within thirty (30) days after receipt of the FF&E Estimate, such FF&E Estimate shall be deemed approved by Landlord. All expenditures from the FF&E Reserve shall be (as to both the amount of each such expenditure and the timing thereof) both reasonable and necessary, given the objective that the Hotels will be maintained and operated to a standard comparable to competitive hotels. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without mark-up or allocated internal costs by Tenant or its Affiliated Persons.
(d) Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures from the FF&E Reserve to be applied to the cost of repairs, maintenance, renovations and replacements to and at such Property in accordance with this Agreement as it deems necessary provided that Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, which approval shall not be unreasonably withheld, delayed or conditioned, except in the case of emergency where immediate action is necessary to prevent imminent harm to person or property. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002, funds in the FF&E Reserve and all property purchased with those funds shall be the property of Landlord and all FF&E Reserve Payments shall constitute Additional Charges. After September 30, 2002, funds deposited in the FF&E Reserve and all property purchased with those funds deposited after September 30, 2002 shall be the property of Tenant. .
(e) Upon the expiration or sooner termination of this Agreement, funds in the FF&E Reserve and all property purchased with those funds from the FF&E Reserve during the Term shall be paid, granted and assigned to Landlord as Additional Charges. Tenant agrees that it will.
(f) Notwithstanding anything to the contrary set forth in this Agreement, from time to time, execute such reasonable documentation as no portion of the FF&E Reserve may be requested by Landlord and/or any Superior Mortgagee to assist Landlord and/or any Superior Mortgagee in establishing used for "punch-list" or perfecting other initial construction items, the Superior Mortgagee’s security interest in Landlord’s residual interest in cost of which shall be the funds which are in the FF&E Reserve; provided, however, that no such documentation shall contain any amendment to or modification sole responsibility of any of the provisions of this AgreementTenant and its Affiliated Persons.
Appears in 1 contract
FF&E Reserve. Certain Entities comprising Landlord have previously (a) Upon execution of this Agreement, Tenant has established a reserve account (the "FF&E Reserve") in a bank designated by Tenant and approved by Landlord. The purpose of the FF&E Reserve for each Senior Housing Property. Tenant shall, as Additional Charges, with respect is to each Lease Year, or portion thereof, deposit, or cause to be deposited, cover the FF&E Reserve Payment into the FF&E Reserve for each Senior Housing Property, of which amounts shall be applied to cost of:
(ai) replacements Replacements and renewals to such Property’s furniture, any Hotel's furnishings, fixtures, soft goods, case goods, vehicles fixtures and equipment, but specifically excluding any fixed asset supplies or software, and ;
(bii) Certain routine repairs and maintenance to the Facility located on such Property any Hotel building which are normally capitalized under GAAP, GAAP such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not major ; and
(iii) Major repairs, alterations, improvements, renewals or replacements to such Facility’s building’s structure any Hotel's buildings' structure, roof, or exterior façade facade, or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems. Any additional Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and any Hotel Mortgagee to assist Landlord and such Hotel Mortgagee in establishing or perfecting the Hotel Mortgagee's security interest in Landlord's residual interest in the funds required which are in the FF&E Reserve; provided, however, that no such documentation shall contain any amendment to or modification of any of the provisions of this Agreement. It is acknowledged and agreed that, during the Term, funds in the FF&E Reserve are the property of Tenant.
(b) Throughout the Term, Tenant shall transfer (within ten (10) Business Days after the end of each Accounting Period during the Term) into the FF&E Reserve an amount equal to the Applicable Percentage of Total Hotel Sales for repairssuch Accounting Period. Together with the documentation provided to Landlord pursuant to Section 3.1.2(c), maintenance, renovations and replacements Tenant shall deliver to Landlord an Officer's Certificate setting forth the total amount of deposits made to and at any Senior Housing Property in excess expenditures from the FF&E Reserve for the preceding Fiscal Year, together with a reconciliation of those on deposit for such Property in expenditures with the applicable FF&E Reserve shall be advanced in accordance with Section 5.1.3(b). Tenant shall prepare, with Estimate.
(c) With respect to each Senior Housing PropertyLease Year, Tenant shall prepare an estimate (the “"FF&E Estimate”") of FF&E Reserve expenditures necessary at such Property during the ensuing Fiscal Year, and shall submit such FF&E Estimate to Landlord, on or before December 1 of the preceding Lease Year, for its review and approval, which approval shall not be unreasonably withheld, delayed or conditioned. In the event that Landlord shall fail to respond within thirty (30) days after receipt of the FF&E Estimate, such FF&E Estimate shall be deemed approved by Landlord. All expenditures from the FF&E Reserve shall be (as to both the amount of each such expenditure and the timing thereof) both reasonable and necessary, given the objective that the Hotels will be maintained and operated to a standard comparable to competitive hotels. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons except that Tenant may use Affiliated Persons to provide goods and services if Landlord has granted its prior written approval thereof or the cost is the lesser of (x) the lowest of two competitive bids therefor submitted by non-Affiliated Persons of Tenant and (y) fair market.
(d) Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures from the FF&E Reserve to be applied to the cost of repairs, maintenance, renovations and replacements to and at such Property in accordance with this Agreement as it deems necessary provided that Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, which approval shall not be unreasonably withheld, delayed or conditioned, except in the case of emergency where immediate action is necessary to prevent imminent harm to person or property. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002, funds in the FF&E Reserve and all property purchased with those funds shall be the property of Landlord and all FF&E Reserve Payments shall constitute Additional Charges. After September 30, 2002, funds deposited in the FF&E Reserve and all property purchased with those funds deposited after September 30, 2002 shall be the property of Tenant. .
(e) Upon the expiration or sooner termination of this Agreement, funds in the FF&E Reserve and all property purchased with those funds from the FF&E Reserve during the Term shall be paid, granted and assigned to Landlord as Additional Charges. .
(f) Upon execution of this Agreement, Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and/or any Superior Mortgagee to assist Landlord and/or any Superior Mortgagee in establishing or perfecting has deposited the Superior Mortgagee’s security interest in Landlord’s residual interest in the funds which are in FF&E Funded Amount into the FF&E Reserve; provided. Notwithstanding anything to the contrary set forth in this Section 5.1.2, howeversuch funds may be used by Tenant solely for the purpose of completing the Tampa Renovation in accordance with Exhibit D, that no such documentation shall contain any amendment to or modification of any of the provisions of this Agreementunless otherwise agreed by Landlord in writing.
Appears in 1 contract
FF&E Reserve. Certain Entities comprising Landlord have previously established (a) Upon execution of this Agreement, Tenant shall establish a reserve account (the "FF&E Reserve") in a bank designated by Tenant and approved by Landlord. The purpose of the FF&E Reserve for each Senior Housing Property. Tenant shall, as Additional Charges, with respect is to each Lease Year, or portion thereof, deposit, or cause to be deposited, cover the FF&E Reserve Payment into the FF&E Reserve for each Senior Housing Property, of which amounts shall be applied to cost of:
(ai) replacements Replacements and renewals to such Property’s furniture, the Hotel's furnishings, fixtures, soft goods, case goods, vehicles fixtures and equipment, but specifically excluding any fixed asset supplies or software, and ;
(bii) Certain routine repairs and maintenance to the Facility located on such Property Hotel building which are normally capitalized under GAAP, GAAP such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not major ; and
(iii) Major repairs, alterations, improvements, renewals or replacements to such Facility’s building’s structure the Hotel's buildings' structure, roof, or exterior façade facade, or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems.
(b) Throughout the Term, Tenant shall transfer (as of the end of each month of the Term) into the FF&E Reserve an 45 -36- amount equal to five percent (5%) of Total Hotel Sales for such month. Any additional funds required for repairsTogether with the documentation provided to Landlord pursuant to Section 3.1.2(c), maintenance, renovations and replacements Tenant shall deliver to Landlord an Officer's Certificate setting forth the total amount of deposits made to and at any Senior Housing Property in excess expenditures from the FF&E Reserve for the preceding Fiscal Year, together with a reconciliation of those on deposit for such Property in expenditures with the applicable FF&E Reserve shall be advanced in accordance with Section 5.1.3(b). Tenant shall prepare, Estimate.
(c) Prior to execution of this Agreement with respect to the 1997 calendar year and, thereafter, each Senior Housing Propertyyear, on or before December 1 of the preceding year, Tenant shall prepare an estimate (the “"FF&E Estimate”") of FF&E Reserve expenditures necessary at such Property during the ensuing Fiscal Year, and shall submit such FF&E Estimate to Landlord, on or before December 1 of the preceding Lease Year, Landlord for its review and approval, which approval shall not be unreasonably withheld, delayed withheld or conditioneddelayed. In the event that Landlord shall fail to respond within thirty (30) days after receipt of the FF&E Estimate, such FF&E Estimate shall be deemed approved by Landlord. All expenditures from the FF&E Reserve shall be (as to both the amount of each such expenditure and the timing thereof) both reasonable and necessary, given the objective that the Hotel will be maintained and operated to a standard comparable to competitive hotels.
(d) Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures from the FF&E Reserve to be applied to the cost of repairs, maintenance, renovations and replacements to and at such Property in accordance with this Agreement as it deems necessary provided that Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, which approval shall not be unreasonably withheld, delayed or conditioned, except in the case of emergency where immediate action is necessary to prevent imminent harm danger to person or property. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002, funds in the FF&E Reserve and all property purchased with those funds shall be the property of Landlord and all FF&E Reserve Payments shall constitute Additional Charges. After September 30, 2002, funds deposited in the FF&E Reserve and all property purchased with those funds deposited after September 30, 2002 shall be the property of Tenant. .
(e) Upon the expiration or sooner termination of this Agreement, funds in the FF&E Reserve and all property purchased with those funds from the FF&E Reserve during the Term shall be paid, granted and assigned to Landlord as Additional Charges. Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and/or any Superior Mortgagee to assist Landlord and/or any Superior Mortgagee in establishing or perfecting the Superior Mortgagee’s security interest in Landlord’s residual interest in the funds which are in the FF&E Reserve; provided, however, that no such documentation shall contain any amendment to or modification of any of the provisions of this Agreement.
Appears in 1 contract
Samples: Lease Agreement (Wyndham Hotel Corp)
FF&E Reserve. Certain Entities comprising Landlord have previously (a) Upon execution of this Lease, Lessee has established a reserve account (the "FF&E Reserve") in a bank designated by Lessee and approved by Lessor. The purpose of the FF&E Reserve for each Senior Housing Property. Tenant shall, as Additional Charges, with respect is to each Lease Year, or portion thereof, deposit, or cause to be deposited, cover the FF&E Reserve Payment into the FF&E Reserve for each Senior Housing Property, of which amounts shall be applied to cost of: (ai) replacements and renewals to such Property’s furniture, furnishings, fixtures, soft goods, case goods, vehicles of the Hotel's Furniture and equipment, but specifically excluding any fixed asset supplies or software, Equipment and Fixtures; (bii) certain routine repairs and maintenance to the Facility located on such Property any Hotel building which are normally capitalized under GAAP, GAAP such as exterior and interior repainting, resurfacing resurface building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not ; and (iii) major repairs, alterations, improvementsimprovements to the Hotel's buildings, renewals or replacements to such Facility’s building’s structure structure, roof, or exterior façade facade, or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems. Any additional funds required for repairs, maintenance, renovations and replacements to and at any Senior Housing Property in excess of those on deposit for such Property in the applicable FF&E Reserve shall be advanced in accordance with Section 5.1.3(b). Tenant shall prepare, with respect to each Senior Housing Property, an estimate (the “FF&E Estimate”) of FF&E Reserve expenditures necessary at such Property during the ensuing Fiscal Year, and shall submit such FF&E Estimate to Landlord, on or before December 1 of the preceding Lease Year, for its review and approval, which approval shall not be unreasonably withheld, delayed or conditioned. In the event that Landlord shall fail to respond within thirty (30) days after receipt of the FF&E Estimate, such FF&E Estimate shall be deemed approved by Landlord. Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures from the FF&E Reserve to be applied to the cost of repairs, maintenance, renovations and replacements to and at such Property in accordance with this Agreement provided that Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, which approval shall not be unreasonably withheld, delayed or conditioned, except in the case of emergency where immediate action is necessary to prevent imminent harm to person or property. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002, funds in the FF&E Reserve and all property purchased with those funds shall be the property of Landlord and all FF&E Reserve Payments shall constitute Additional Charges. After September 30, 2002, funds deposited in the FF&E Reserve and all property purchased with those funds deposited after September 30, 2002 shall be the property of Tenant. Upon the expiration or sooner termination of this Agreement, funds in the FF&E Reserve and all property purchased with those funds during the Term shall be paid, granted and assigned to Landlord as Additional Charges. Tenant Lessee agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and/or Lessor and any Superior Mortgagee Lessor mortgagee to assist Landlord and/or any Superior Mortgagee Lessor and such Lessor mortgagee in establishing or perfecting the Superior Mortgagee’s Lessor mortgagee's security interest in Landlord’s Lessor's residual interest in the funds which are in the FF&E Reserve; provided, however, that no such documentation shall contain any amendment to or modification of any of the provisions of this AgreementLease. It is acknowledged and agreed, that during the Term, funds in the FF&E Reserve are the property of Lessee. Payments made by Lessee out of the FF&E Reserve during the Term will be Additional Charges.
(b) Throughout the Term, Lessee shall transfer (within ten (10) Business Days after the end of each calendar month during the Term) into the FF&E Reserve an amount equal to __% of Room Revenues for such calendar month. Together with the documentation provided to Lessor pursuant to Section 3.1, Lessee shall also deliver to Lessor an Officer's Certificate setting forth the total amount of deposits made to and expenditures from the FF&E Reserve for the preceding Fiscal Year, together with a reconciliation of such expenditures with the FF&E Estimate (as defined below).
(c) With respect to each Fiscal Year during the Term, Lessee shall prepare an estimate (the "FF&E Estimate") of FF&E Reserve expenditures necessary during the ensuing Fiscal Year, and shall submit such FF&E Estimate to Lessor, on or before December 1st of the preceding Fiscal Year, for its review and approval, which approval shall not be unreasonably withheld. In the event that Lessor shall fail to respond within thirty (30) days after receipt of the FF&E Estimate, such FF&E Estimate shall be deemed approved by Lessor. All expenditures from the FF&E Reserve shall be (as to both the amount of such expenditure and the timing thereof) both reasonable and necessary, given the objective that the Hotel be maintained and operated to a standard comparable to competitive hotels. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliates of Lessee without markup or allocated internal costs by Lessee or its Affiliates.
(d) Lessee shall, consistent with the FF&E Estimate approved by Lessor, from time to time make expenditures from the FF&E Reserve as it deems necessary provided that Lessee shall not materially deviate from the FF&E Estimate approved by Lessor without the prior approval of Lessor, which approval shall not be unreasonably withheld, except in the case of emergencies where immediate action is necessary to prevent imminent harm to person or property.
(e) Upon the expiration of the Term, funds in the FF&E Reserve and all property purchased with funds from the FF&E Reserve during the Term shall be paid, granted and assigned to Lessor as Additional Charges.
(f) Notwithstanding anything to the contrary contained in this Section 9.2, so long as the Management Agreement is in full force and effect and Manager is maintaining the reserves required thereunder, Lessee's obligation to maintain the FF&E Reserve and other obligations under this Section 9.2 shall be deemed to have been met.
Appears in 1 contract
FF&E Reserve. Certain Entities comprising Landlord have previously (a) Upon execution of this Agreement, Tenant has established a reserve account (the "FF&E RESERVE") in a bank designated by Tenant and approved by Landlord. The purpose of the FF&E Reserve for each Senior Housing Property. Tenant shall, as Additional Charges, with respect is to each Lease Year, or portion thereof, deposit, or cause to be deposited, cover the FF&E Reserve Payment into the FF&E Reserve for each Senior Housing Property, of which amounts shall be applied to cost of:
(ai) replacements Replacements and renewals to such Property’s furniture, any Hotel's furnishings, fixtures, soft goods, case goods, vehicles fixtures and equipment, but specifically excluding any fixed asset supplies or software, and ;
(bii) Certain routine repairs and maintenance to the Facility located on such Property any Hotel building which are normally capitalized under GAAP, GAAP such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not major ; and
(iii) Major repairs, alterations, improvements, renewals or replacements to such Facility’s building’s structure any Hotel's buildings' structure, roof, or exterior façade facade, or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems. Any additional Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and any Hotel Mortgagee to assist Landlord and such Hotel Mortgagee in establishing or perfecting the Hotel Mortgagee's security interest in Landlord's residual interest in the funds required which are in the FF&E Reserve; PROVIDED, HOWEVER, that no such documentation shall contain any amendment to or modification of any of the provisions of this Agreement. It is acknowledged and agreed that, during the Term, funds in the FF&E Reserve are the property of Tenant.
(b) Throughout the Term, Tenant shall transfer (within ten (10) Business Days after the end of each Accounting Period during the Term) into the FF&E Reserve an amount equal to the Applicable Percentage of Total Hotel Sales for repairssuch Accounting Period. Together with the documentation provided to Landlord pursuant to SECTION 3.1.2(C), maintenance, renovations and replacements Tenant shall deliver to Landlord an Officer's Certificate setting forth the total amount of deposits made to and at any Senior Housing Property in excess expenditures from the FF&E Reserve for the preceding Fiscal Year, together with a reconciliation of those on deposit for such Property in expenditures with the applicable FF&E Reserve shall be advanced in accordance with Section 5.1.3(b). Tenant shall prepare, with Estimate.
(c) With respect to each Senior Housing PropertyLease Year, Tenant shall prepare an estimate (the “"FF&E Estimate”ESTIMATE") of FF&E Reserve expenditures necessary at such Property during the ensuing Fiscal Year, and shall submit such FF&E Estimate to Landlord, on or before December 1 of the preceding Lease Year, for its review and approval, which approval shall not be unreasonably withheld, delayed or conditioned. In the event that Landlord shall fail to respond within thirty (30) days after receipt of the FF&E Estimate, such FF&E Estimate shall be deemed approved by Landlord. All expenditures from the FF&E Reserve shall be (as to both the amount of each such expenditure and the timing thereof) both reasonable and necessary, given the objective that the Hotels will be maintained and operated to a standard comparable to competitive hotels. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without mxxx-up or allocated internal costs by Tenant or its Affiliated Persons except that Tenant may use Affiliated Persons to provide goods and services if Landlord has granted its prior written approval thereof or the cost is the lesser of (x) the lowest of two competitive bids therefor submitted by non-Affiliated Persons of Tenant and (y) fair market.
(d) Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures from the FF&E Reserve to be applied to the cost of repairs, maintenance, renovations and replacements to and at such Property in accordance with this Agreement as it deems necessary provided that Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, which approval shall not be unreasonably withheld, delayed or conditioned, except in the case of emergency where immediate action is necessary to prevent imminent harm to person or property. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002, funds in the FF&E Reserve and all property purchased with those funds shall be the property of Landlord and all FF&E Reserve Payments shall constitute Additional Charges. After September 30, 2002, funds deposited in the FF&E Reserve and all property purchased with those funds deposited after September 30, 2002 shall be the property of Tenant. .
(e) Upon the expiration or sooner termination of this Agreement, funds in the FF&E Reserve and all property purchased with those funds from the FF&E Reserve during the Term shall be paid, granted and assigned to Landlord as Additional Charges. .
(f) Upon execution of this Agreement, Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and/or any Superior Mortgagee to assist Landlord and/or any Superior Mortgagee in establishing or perfecting has deposited the Superior Mortgagee’s security interest in Landlord’s residual interest in the funds which are in FF&E Funded Amount into the FF&E Reserve; provided. Notwithstanding anything to the contrary set forth in this SECTION 5.1.2, howeversuch funds may be used by Tenant solely for the purpose of completing the Tampa Renovation in accordance with EXHIBIT D, that no such documentation shall contain any amendment to or modification of any of the provisions of this Agreementunless otherwise agreed by Landlord in writing.
Appears in 1 contract
Samples: Lease Agreement (Sholodge Inc)
FF&E Reserve. Certain Entities comprising (a) The FF&E Reserve, all amounts deposited therein, and all Capital Replacements shall belong to Landlord.
(b) Beginning on February 25, 2007 and on the twenty-fifth day of every month thereafter, Tenant shall transfer into the FF&E Reserve an amount equal to the Applicable Percentage of Total Hotel Sales for the prior month.
(c) Not less than sixty (60) days prior to the first day of each Fiscal Year after the 2005 Fiscal Year, Tenant shall submit to Landlord have previously established for Landlord's approval a proposed estimate of expenditures from the FF&E Reserve for each Senior Housing Property. Tenant shall, as Additional Charges, with respect to each Lease Year, or portion thereof, deposit, or cause to be deposited, the FF&E Reserve Payment into the FF&E Reserve for each Senior Housing Property, of which amounts shall be applied to (a) replacements and renewals to such Property’s furniture, furnishings, fixtures, soft goods, case goods, vehicles and equipment, but specifically excluding any fixed asset supplies or software, and (b) routine repairs and maintenance to the Facility located on such Property which are normally capitalized under GAAP, such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not major repairs, alterations, improvements, renewals or replacements to such Facility’s building’s structure or exterior façade or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems. Any additional funds required for repairs, maintenance, renovations and replacements to and at any Senior Housing Property in excess of those on deposit for such Property in the applicable FF&E Reserve shall be advanced in accordance with Section 5.1.3(b). Tenant shall prepare, with respect to each Senior Housing Property, an estimate (the “FF&E Estimate”) of FF&E Reserve expenditures necessary at such Property during the ensuing full or partial Fiscal Year, and shall submit such as the case may be (the "FF&E Estimate"). If Landlord fails to disapprove of a proposed FF&E Estimate to Landlord, on or before December 1 of the preceding Lease Year, for its review and approval, which approval shall not be unreasonably withheld, delayed or conditioned. In the event that Landlord shall fail to respond within thirty (30) days after receipt of the submission thereof to Landlord for its approval, the same shall be deemed approved. Together with each such FF&E Estimate, such Tenant shall provide to Landlord a proposed five-year capital plan for the Hotel for Landlord's review and approval. Tenant will provide Landlord with the material data and information utilized in preparing the FF&E Estimates or any revisions thereof. Tenant will not be deemed to have made any guaranty, warranty or representation whatsoever in connection with the FF&E Estimates, except that the proposed FF&E Estimates reflect Tenant's best professional estimates of the matters they describe. The FF&E Estimate for the 2005 Fiscal Year shall have been delivered by Tenant to Landlord on or before the Commencement Date.
(d) In the event Landlord disapproves or raises any objections to the proposed FF&E Estimate, or any portion thereof, or any revisions thereto, Landlord and Tenant shall cooperate with each other in good faith to resolve the disputed or objectionable items. If Landlord disapproves of a proposed FF&E Estimate, Landlord will disapprove on a specific line-by-line basis to the extent reasonably practical. Any dispute with respect to a proposed FF&E Estimate which is not resolved by the parties within thirty (30) days after the submission thereof to Landlord shall be deemed approved resolved by LandlordArbitration.
(e) All expenditures from the FF&E Reserve shall be (as to both the amount of each such expenditure and the timing thereof) both reasonable and necessary, given the objective that the Hotel will be maintained and operated to a standard comparable to competitive hotels. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without markup or allocated internal costs by Tenant or its Affiliated Persons except that Tenant may use Affiliated Persons to provide goods and services if Landlord has granted its prior written approval thereof.
(f) Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures from the FF&E Reserve to be applied to pay for Capital Replacements made during the cost of repairs, maintenance, renovations and replacements to and at such Property in accordance with this Agreement provided that Term. Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, which approval shall not be unreasonably withheld, delayed or conditioned, except in the case of emergency where immediate action is necessary to prevent imminent harm to person or property. All Notwithstanding anything in this Agreement to the contrary, no additional cost or expense shall be incurred or paid in connection with any Capital Replacements made during the last two (2) years of the Term to the extent attributable solely to complying with the InterContinental brand standards.
(g) Any amounts from remaining in the FF&E Reserve at the close of each Lease Year will be carried forward and retained in the FF&E Reserve. Any and all portions of the Hotel which are scrapped or removed in connection with the making of any major or non-major repairs, renovations, additions, alterations, improvements, removals or replacements shall be paid to Persons who are not Affiliated Persons disposed of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002, funds any net proceeds thereof shall be deposited in the FF&E Reserve and all property purchased with those funds not included in Total Hotel Sales. In addition, any proceeds from the sale of FF&E no longer necessary to the operation of the Hotel shall be added to the FF&E Reserve.
(h) Subject to the terms of Section 5.1.2 (j), Tenant shall be the property of Landlord and all only party entitled to withdraw funds from the FF&E Reserve Payments until a Default shall constitute Additional Charges. After September 30occur.
(i) Upon the expiration or earlier termination of the Term, 2002Tenant shall disburse to Landlord, or as Landlord shall direct, all amounts remaining in the FF&E Reserve after payments of all expenses on account of Capital Replacements appropriately incurred by Tenant during the Term.
(j) So long as the Managed Hotels are Pooled FF&E Hotels, it is understood and agreed that funds deposited in the FF&E Reserve pursuant to this Agreement and all property purchased with those funds deposited after September 30, 2002 the Reserve Account under New Management Agreement shall be the property of Tenant. Upon the expiration or sooner termination of this Agreement, funds maintained and used on a consolidated basis such that all amounts to be deposited in the FF&E Reserve and all property purchased with those funds during the Term Reserve Account shall be paid, granted deposited in a single account and assigned Portfolio Manager and Tenant may apply any funds therein to Landlord as Additional Charges. Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and/or any Superior Mortgagee to assist Landlord and/or any Superior Mortgagee in establishing or perfecting the Superior Mortgagee’s security interest in Landlord’s residual interest in the funds which are in the FF&E Reserve; provided, however, that no such documentation shall contain any amendment to or modification of any of the provisions Pooled FF&E Hotels in accordance with the terms of this Agreement and the New Management Agreement.
(k) Notwithstanding anything contained herein to the contrary, if Landlord advises Tenant that in Landlord's opinion, the fair market value of all personal property of Landlord at, about or which forms a part of the Property is equal to or exceeds thirteen and one half percent (13.5%) of the fair market value of the Property, Tenant and its Affiliates shall not use funds from the FF&E Reserve or which are required to be expended pursuant to any purchase agreement to purchase additional personal property for use at, about or as part of the Property without Landlord's prior written consent, which consent may be granted or withheld in Landlord's sole and absolute judgment.
Appears in 1 contract
Samples: Stock Purchase Agreement (Hospitality Properties Trust)
FF&E Reserve. Certain Entities comprising Landlord have previously (a) Upon execution of this Agreement, Tenant has established a reserve account (the "FF&E Reserve") in a bank designated by Tenant and ------------ approved by Landlord. The purpose of the FF&E Reserve for each Senior Housing Property. Tenant shall, as Additional Charges, with respect is to each Lease Year, or portion thereof, deposit, or cause to be deposited, cover the FF&E Reserve Payment into the FF&E Reserve for each Senior Housing Property, of which amounts shall be applied to cost of:
(ai) replacements Replacements and renewals to such Property’s furniture, any Hotel's furnishings, fixtures, soft goodsequipment and signage (other than replacement of signage during the first five (5) years of the Term resulting from the change in the operating names for the Hotels, case goods, vehicles and equipment, but specifically excluding any fixed asset supplies or software, and which shall be paid for by Tenant);
(bii) Certain routine repairs and maintenance to the Facility located on such Property any Hotel building which are normally capitalized under GAAP, GAAP such as exterior and interior repainting, resurfacing building walls, floors, roofs and parking areas, and replacing folding walls and the like, but which are not major ; and
(iii) Major repairs, alterations, improvements, renewals or replacements to such Facility’s building’s structure any Hotel's buildings' structure, roof, or exterior façade facade, or to its mechanical, electrical, heating, ventilating, air conditioning, plumbing or vertical transportation systems. Any additional Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and any Hotel Mortgagee to assist Landlord and such Hotel Mortgagee in establishing or perfecting the Hotel Mortgagee's security interest in Landlord's residual interest in the funds required which are in the FF&E Reserve; provided, however, -------- ------- that no such documentation shall contain any amendment to or modification of any of the provisions of this Agreement. It is acknowledged and agreed that, during the Term, funds in the FF&E Reserve are the property of Tenant.
(b) Throughout the Term, Tenant shall transfer (on the first Business Day of the second succeeding Accounting Period) into the FF&E Reserve an amount equal to the greater of (x) the Applicable Percentage of Total Hotel Sales for repairssuch Accounting Period and (y) One Hundred Twenty- Five Thousand Dollars ($125,000). Together with the documentation provided to Landlord pursuant to Section 3.1.2(c), maintenance, renovations and replacements Tenant shall deliver to Landlord ---------------- an Officer's Certificate setting forth the total amount of deposits made to and at any Senior Housing Property in excess expenditures from the FF&E Reserve for the preceding Fiscal Year, together with a reconciliation of those on deposit for such Property in expenditures with the applicable FF&E Reserve shall be advanced in accordance with Section 5.1.3(b). Tenant shall prepare, with Estimate.
(c) With respect to each Senior Housing PropertyLease Year, Tenant shall prepare an estimate (the “"FF&E Estimate”") of FF&E Reserve expenditures necessary at such Property ------------- during the ensuing Fiscal Year, and shall submit such FF&E Estimate to Landlord, on or before December 1 of the preceding Lease Year, for its review and approval, which approval shall not be unreasonably withheld, delayed or conditioned. In the event that Landlord shall fail to respond within thirty twenty (3020) days Business Days after receipt of the FF&E Estimate, such FF&E Estimate shall be deemed approved by Landlord. If Landlord shall disapprove such FF&E Estimate, Tenant shall operate the Leased Property based on the FF&E Estimate for the preceding year until approval thereof. The parties shall endeavor, in good faith, to agree on any disputed items as promptly as possible. All expenditures from the FF&E Reserve shall be (as to both the amount of each such expenditure and the timing thereof) both reasonable and necessary, given the objective that the Hotels will be maintained and operated to a standard comparable to competitive hotels. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons except that Tenant may use Affiliated Persons to provide goods and services if Landlord has granted its prior written approval thereof or the cost is the lesser of (x) the lowest of two competitive bids therefor submitted by non-Affiliated Persons of Tenant and (y) fair market.
(d) Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures from the FF&E Reserve to be applied to the cost of repairs, maintenance, renovations and replacements to and at such Property in accordance with this Agreement as it deems necessary provided that Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, which approval shall not be unreasonably withheld, delayed or conditioned, except in the case of emergency where immediate action is necessary to prevent imminent harm to person or property. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without xxxx-up or allocated internal costs by Tenant or its Affiliated Persons. On and before September 30, 2002, funds in the FF&E Reserve and all property purchased with those funds shall be the property of Landlord and all FF&E Reserve Payments shall constitute Additional Charges. After September 30, 2002, funds deposited in the FF&E Reserve and all property purchased with those funds deposited after September 30, 2002 shall be the property of Tenant. .
(e) Upon the expiration or sooner termination of this Agreement, funds in the FF&E Reserve and all property purchased with those funds from the FF&E Reserve during the Term shall be paid, granted and assigned to Landlord as Additional Charges. Tenant agrees that it will, from time to time, execute such reasonable documentation as may be requested by Landlord and/or any Superior Mortgagee to assist Landlord and/or any Superior Mortgagee in establishing or perfecting the Superior Mortgagee’s security interest in Landlord’s residual interest in the funds which are in the FF&E Reserve; provided, however, that no such documentation shall contain any amendment to or modification of any of the provisions of this Agreement.
Appears in 1 contract
