Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement. (b) Lender reserves the right, at its option, to approve each contract or work order with any materialman, mechanic, supplier, subcontractor, contractor or other party providing labor or materials in connection with the Replacements the total contracted-for payments to which exceed $100,000. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party. (c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner and such failure continues for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder. (d) In order to facilitate Lender’s completion or making of such Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, to enter onto the Property and perform any and all work and labor necessary to complete or make such Replacements and/or employ watchmen to protect the Property from damage. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in fact with full power of substitution to complete or undertake such Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Borrower empowers said attorney in fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such Replacements; (ii) to make such additions, changes and corrections to such Replacements as shall be necessary or desirable to complete such Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement. (e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement. (f) Borrower shall permit, and shall cause Master Lessee to permit, Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants under their Leases or Hotel Transactions) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.3.
Appears in 1 contract
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable first class retail properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements the total contracted-for payments to which exceed $100,000performed by Borrower. Upon Lender’s 's request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s 's completion or making of such the Replacements pursuant to Section 7.3.3(c7.3.3(b) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the Property and perform any and all work and labor necessary to complete or make such the Replacements and/or employ watchmen to protect the Property from damage, subject to the rights of Tenants. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedrevoked but shall only be effective following an Event of Default. Borrower empowers said attorney in attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such the Replacements as shall be necessary or desirable to complete such the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s 's agents and representatives (including, without limitation, Lender’s 's engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender's representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Property at Borrower's expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic's, materialman's or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic's or materialmen's liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen's compensation insurance, builder's risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable first class, office properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements the total contracted-for payments to which exceed $100,000performed by Borrower. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s completion or making of such the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the Property and perform any and all work and labor necessary to complete or make such the Replacements and/or employ watchmen to protect the Property from damage, subject to the rights of Tenants. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedrevoked but shall only be effective following an Event of Default. Borrower empowers said attorney in attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such the Replacements as shall be necessary or desirable to complete such the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Property at Borrower’s expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialman’s or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic’s or materialmen’s liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.
Appears in 1 contract
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the each Individual Property in condition and repair consistent with other comparable properties in the same market segment in the metropolitan area in which the respective Individual Property is located, and to keep the each Individual Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(ba) Lender reserves the right, at its option, to approve each contract all contracts or work order orders in excess of $25,000.00 with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials in connection with the Replacements the total contracted-for payments to which exceed $100,000Replacements. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(cb) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner and such failure continues for more than thirty (30) days after notice from Lender to Borrowermanner, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to cause Borrower to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund Funds toward the labor and materials necessary to complete such Replacement, without providing any further notice to Borrower and to exercise any and all other remedies available to Lender upon .
(c) During the continuance of an Event of Default hereunder.
(d) In Default, in order to facilitate Lender’s completion or making of such Replacements pursuant to Section 7.3.3(c) aboveReplacements, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the any Individual Property and perform any and all work and labor necessary to complete or make such Replacements and/or employ watchmen to protect the such Individual Property from damage. All sums so expended by Lender, to the extent there are not from the sufficient Replacement Reserve FundFunds therefor, shall be deemed to have been advanced under the Loan to Borrower and secured by the MortgageSecurity Instruments. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such Replacements in the name of BorrowerBorrower if Lender has accelerated the Loan following an Event of Default. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Borrower empowers said attorney in fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such Replacements; (ii) to make such additions, changes and corrections to such Replacements as shall be necessary or desirable to complete such Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the any Individual Property, or as may be necessary or desirable for the completion of such Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documentsdocuments for such Replacements; (vi) to prosecute and defend all actions or proceedings in connection with the any Individual Property or the rehabilitation and repair of the any Individual Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(ed) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund Funds to make or complete any Replacement; (iii) obligate Lender to proceed with any Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(fe) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the each Individual Property during normal business hours (subject to the rights of Tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, and to examine all plans and shop drawings relating to such Replacements which are or may be kept at the each Individual Property, and during the continuance of an Event of Default, to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this subsection (f) or the completion of Replacements pursuant to this Section 7.3.3.
(f) Lender may require an inspection of the Individual Property at Borrower’s expense prior to making a monthly disbursement from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the reasonable expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(g) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialmen’s or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).
Appears in 1 contract
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable first class, full service retail properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements the total contracted-for payments to which exceed $100,000. performed by Borrower, Upon Lender’s 's request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s 's completion or making of such the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the Property and perform any and all work and labor necessary to complete or make such the Replacements and/or employ watchmen to protect the Property from damage, subject to the rights of Tenants. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedrevoked but shall only be effective following an Event of Default. Borrower empowers said attorney in attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such the Replacements as shall be necessary or desirable to complete such the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s 's agents and representatives (including, without limitation, Lender’s 's engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender's representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Property at Borrower's expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic's, materialman's or other liens {except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic's or materialmen's liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen's compensation insurance, builder's risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the each Individual Property in condition and repair consistent with other comparable properties of type, quality and size in the same market segment in the metropolitan area in which the respective Individual Property is located, and to keep the each Individual Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete be completed all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials in connection with the Replacements costing, in the total contracted-for payments aggregate, in excess of $100,000 with respect to which exceed $100,000each Individual Property, such approval not to be unreasonably withheld, conditioned or delayed. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner and such failure continues for more than thirty (30) days after notice from Lender to Borrowermanner, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and and, during the existence of an Event of Default, to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s completion or making of such the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the any applicable Individual Property and perform any and all work and labor necessary to complete or make such the Replacements and/or employ watchmen to protect the Property such Individual Properties from damage. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the MortgageSecurity Instruments. For this purpose purpose, Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Borrower empowers said attorney in attorney-in-fact as follows: :
(i) to use any funds in the Replacement Reserve Account Fund for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such the Replacements as shall be necessary or desirable to complete such the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the any Individual Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the any Individual Property or the rehabilitation and repair of the any Individual Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants under their Leases or Hotel Transactions) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.3.parties
Appears in 1 contract
Samples: Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders for amounts in excess of $750,000.00 with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials in connection with the Replacements Replacements. Lender’s approval (i) shall only be required for such amounts that are not already set forth in the total contractedAnnual Budget for the related Replacements, (ii) shall consist of a review of whether the contract or work order has customary, market provisions without non-standard terms, and whether the contract or work order would violate or cause Borrower to violate any provisions under the Loan Documents (including any Special Purpose Entity requirements), and (iii) shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, in the event of an emergency (due to an act of God, explosion, casualty, or any other cause) requiring an immediate contract or work order for payments the Replacements, Borrower may enter into such a contract or work order without the prior approval of Lender, provided that Borrower shall deliver a copy of such executed contract or work order to which exceed $100,000Lender. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In If an Event of Default has occurred and is continuing, in the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner and such failure continues for more than thirty (30) days after notice from Lender to Borrowermanner, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s completion or making of such Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the Property and perform any and all work and labor necessary to complete or make such Replacements and/or employ watchmen to protect the Property from damage. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose purpose, upon an Event of Default and during the continuance thereof, Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Borrower empowers said attorney in attorney-in-fact as follows: :
(i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such Replacements; (ii) to make such additions, changes and corrections to such Replacements as shall be necessary or desirable to complete such Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any Replacements; or (iv) obligate or entitle Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Property at Borrower’s expense prior to making a monthly disbursement from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought to the extent that such reimbursement, in the aggregate, exceeds $250,000.00. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialmen’s or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic’s or materialmen’s liens or other liens of any nature have been placed against the Property since the date of recordation of the related Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the related Mortgage and any other Liens previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.
Appears in 1 contract
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the each Individual Property in condition and repair consistent with other comparable properties first class, full service limited service hotels in the same market segment in the metropolitan area in which the respective Individual Property is located, and to keep the each Individual Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements the total contracted-for payments to which exceed $100,000performed by Borrower. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s completion or making of such Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the any Individual Property and perform any and all work and labor necessary to complete or make such Replacements and/or employ watchmen to protect the such Individual Property from damage. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the MortgageMortgages. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedrevoked but shall only be effective following an Event of Default. Borrower empowers said attorney in attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such the Replacements as shall be necessary or desirable to complete such the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the any Individual Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the any Individual Property or the rehabilitation and repair of the any Individual Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the each Individual Property during normal business hours (subject to the rights of Tenants tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the each Individual Property, and to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Individual Property at Borrower’s expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialman’s or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the applicable Individual Property effective to the date of the disbursement, which search shows that no mechanic’s or materialmen’s liens or other liens of any nature have been placed against the applicable Individual Property since the date of recordation of the related Mortgage and that title to such Individual Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the applicable Individual Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.
Appears in 1 contract
Samples: Loan Agreement (Inland American Real Estate Trust, Inc.)
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable first class, full service retail properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements the total contracted-for payments to which exceed $100,000performed by Borrower. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s completion or making of such the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the Property and perform any and all work and labor necessary to complete or make such the Replacements and/or employ watchmen to protect the Property from damage, subject to the rights of Tenants. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedrevoked but shall only be effective following an Event of Default. Borrower empowers said attorney in attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such the Replacements as shall be necessary or desirable to complete such the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Loan Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Property at Borrower’s expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialman’s or other liens (except for those Liens existing on the date of this Loan Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic’s or materialmen’s liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.
Appears in 1 contract
Samples: Loan Agreement (Inland American Real Estate Trust, Inc.)
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable first class, full service retail properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements the total contracted-for payments to which exceed $100,000performed by Borrower. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s completion or making of such the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the Property and perform any and all work and labor necessary to complete or make such the Replacements and/or employ watchmen to protect the Property from damage, subject to the rights of Tenants. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedrevoked but shall only be effective following an Event of Default. Borrower empowers said attorney in attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such the Replacements as shall be necessary or desirable to complete such the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: shall (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Property at Borrower’s expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialman’s or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic’s or materialmen’s liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable first class, full service retail properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements the total contracted-for payments to which exceed $100,000Replacements. Upon Lender’s 's request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s 's completion or making of such the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the Property and perform any and all work and labor necessary to complete or make such the Replacements and/or employ watchmen to protect the Property from damage. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedrevoked but shall only be effective following an Event of Default. Borrower empowers said attorney in attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such me Replacements as shall 60 be necessary or desirable to complete such the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s 's agents and representatives (including, without limitation, Lender’s 's engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender's representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Property at Borrower's expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic's, materialman's or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic's or materialmen's liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen's compensation insurance, builder's risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall he delivered to Lender.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the each Individual Property in good condition and repair consistent with other comparable properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deterioratingdeteriorating consistent with the requirements of the Management Agreement. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) During a Cash Trap Period, Lender reserves the right, at its option, to approve each contract all contracts or work order orders for amounts in excess of Four Million and No/100 Dollars ($4,000,000.00) (such approval not to be unreasonably withheld, delayed or conditioned) with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials in connection with the Replacements the total contracted-for payments to which exceed $100,000Replacements. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In During the continuance of an Event of Default, in the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner and such failure continues for more than thirty manner, upon three (303) days after Business Days written notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such ReplacementReplacement and, without providing the requirement of providing any further prior notice to Borrower and Borrower, to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In During the continuance of an Event of Default, in order to facilitate Lender’s completion or making of such Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the any Individual Property and perform any and all work and labor necessary to complete or make such Replacements and/or employ watchmen to protect the such Individual Property from damagedamage (subject to the rights of Tenants). All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the MortgageMortgages. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in fact with full power of substitution to complete or undertake such Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Borrower empowers said attorney in fact for this purpose as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such Replacements; (ii) to make such additions, changes and corrections to such Replacements as shall be necessary or desirable to complete such Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the any Individual Property, or as may be necessary or desirable for the completion of such Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be reasonably required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the any Individual Property or the rehabilitation and repair of the any Individual Property; and (vii) to do any and every reasonable act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) If reasonably determined to be necessary, Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the each Individual Property during normal business hours (subject to the rights of Tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the each Individual Property, and and, during the continuance of an Event of Default, to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
Appears in 1 contract
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the each Individual Property in condition and repair consistent with other comparable properties in the same market segment in the metropolitan area in which the applicable Individual Property is located, and to keep the each Individual Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials in connection with the Replacements the total contracted-for payments Replacements, such approval not to which exceed $100,000be unreasonably withheld, conditioned or delayed. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner and such failure continues for more than thirty (30) days after notice from Lender to Borrowermanner, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s completion or making of such Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the applicable Individual Property and perform any and all work and labor necessary to complete or make such Replacements and/or employ watchmen to protect the applicable Individual Property from damage. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the MortgageSecurity Instrument. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in fact with full power of substitution to complete or undertake such Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Borrower empowers said attorney in fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such Replacements; (ii) to make such additions, changes and corrections to such Replacements as shall be necessary or desirable to complete such Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the applicable Individual Property, or as may be necessary or desirable for the completion of such Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the applicable Individual Property or the rehabilitation and repair of the applicable Individual Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s agents and representatives (including, without limitation, including Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the applicable Individual Property during normal business hours (subject to the rights of Tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the applicable Individual Property, and to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the applicable Individual Property at Borrower’s expense prior to making a monthly disbursement from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the reasonable expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialmen’s or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the applicable Individual Property effective to the date of the disbursement, which search shows that no mechanic’s or materialmen’s liens or other liens of any nature have been placed against the applicable Individual Property since the date of recordation of the related Security Instrument and that title to the applicable Individual Property is free and clear of all Liens (other than the lien of the related Security Instrument and any other Liens previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the applicable Individual Property and applicable insurance requirements including applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certificates of insurance evidencing such policies shall be delivered to Lender.
Appears in 1 contract
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when reasonably required in order to keep the Property in condition and repair consistent with other comparable properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as is reasonably practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract approve, in its reasonable discretion, all contracts or work order orders in excess of $200,000.00 with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials in connection with the Replacements the total contracted-for payments to which exceed $100,000Replacements. Upon Lender’s request, Borrower shall assign to Lender any such contract of the forgoing contracts or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign subcontracts to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner manner, and such failure continues for more than thirty matters are not corrected to the reasonable satisfaction of Lender within sixty (3060) days after following written notice thereof from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement therefor and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s completion or making of such any Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the rightright to enter, upon reasonable prior notice and during the existence of an Event of Default or as necessary to respond to emergency conditionsreasonable times, to enter onto the Property Property, subject to the rights of the Tenants, and perform any and all work and labor necessary to complete or make such Replacements and/or or employ watchmen to protect the Property from damage. All reasonable and documented out-of-pocket sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the MortgageSecurity Instrument. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in fact with full power of substitution to complete or undertake such Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Borrower empowers said attorney in fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such Replacements; (ii) to make such additions, changes and corrections to such Replacements as shall be reasonably necessary or desirable to complete such Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be reasonably required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be reasonably necessary or desirable for the completion of such Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) In connection with any requested monthly disbursement in excess of $100,000.00, Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s agents and representatives (including, without limitation, including Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property with reasonable prior notice and during normal business hours (subject to the rights of Tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.3.
Appears in 1 contract
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable first class, full service retail properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property Properly or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements the total contracted-for payments to which exceed $100,000performed by Borrower. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s completion or making of such the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the Property and perform any and all work and labor necessary to complete or make such the Replacements and/or employ watchmen to protect the Property from damage, subject to the rights of Tenants. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedrevoked but shall only be effective following an Event of Default. Borrower empowers said attorney in attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such the Replacements as shall be necessary or desirable to complete such the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Property at Borrower’s expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialman’s or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic’s or materialmen’s liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Performance of Replacements. (a) Borrower shall make (or shall cause Master Lessee to make be made) Replacements when required in order to keep the Property in good condition and repair consistent with other comparable properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deterioratingdeteriorating consistent with the requirements of each (x) Casino Management Agreement, (y) Management Agreement and (z) Franchise/License Agreement. Borrower shall complete (or if the Property is subject to (x) a Brand Management Agreement, shall cause Master Lessee Brand Manager to complete all Replacements as required pursuant to and in accordance with such Brand Management Agreement or (y) a Casino Management Agreement, shall cause Casino Operator to complete all Replacements as required pursuant to and in accordance with such Casino Management Agreement) all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) During a Cash Trap Period, Lender reserves shall have the right, at its option, to approve each contract all contracts or work order orders for amounts in excess of Five Million and No/100 Dollars ($5,000,000.00) (such approval not to be unreasonably withheld, delayed or conditioned and to the extent that any Individual Property is subject to (x) a Brand Management Agreement, such approval shall be limited to the extent that Borrower shall have the right to approve such contracts in accordance with any materialmansuch Brand Management Agreement and (y) a Casino Management Agreement, mechanicsuch approval shall be limited to the extent that Borrower shall have the right to approve such contracts in accordance with such Casino Management Agreement) with materialmen, suppliermechanics, subcontractorsuppliers, contractor subcontractors, contractors or other party parties providing labor or materials in connection with the Replacements the total contracted-for payments to which exceed $100,000Replacements. Upon LenderXxxxxx’s requestrequest during a Cash Trap Period, Borrower shall assign to Lender any such contract or subcontract to which Lender (provided, that if any Individual Property is subject to (x) a Brand Management Agreement, such assignment shall be limited to the extent that Borrower is a party, or cause Master Lessee shall be permitted to assign such contracts under such Brand Management Agreement and (y) a Casino Management Agreement, such assignment shall be limited to Borrower, and then the extent that Borrower shall be permitted to assign to Lender, any such contract or subcontract to which Master Lessee is a partycontracts under such Casino Management Agreement).
(c) In During the continuance of an Event of Default, in the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner and such failure continues for more than thirty manner, upon three (303) days after Business Days written notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement Replacements and to proceed under existing contracts or to contract with third third-parties to complete such Replacement and to apply the Replacement Reserve Fund Funds toward the labor and materials necessary to complete such Replacement, without providing any further notice to Borrower and during the continuance of an Event of Default, to exercise any and all other remedies available to Lender upon an Event of Default hereunder, provided, that to the extent that any Individual Property is subject to (x) a Brand Management Agreement, Xxxxxx’s rights under this Section 7.3.3(c) shall be subject to the rights of such Brand Manager to the extent that such Brand Manager is permitted to perform such Replacements pursuant to and in accordance with such Brand Management Agreement and (y) a Casino Management Agreement, Lender’s rights under this Section 7.3.3(c) shall be subject to the rights of such Casino Operator to the extent that such Casino Operator is permitted to perform such Replacements pursuant to and in accordance with such Casino Management Agreement.
(d) In During the continuance of an Event of Default, in order to facilitate LenderXxxxxx’s completion or making of such Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the each Individual Property and perform any and all work and labor necessary to complete or make such Replacements and/or employ watchmen to protect the each Individual Property from damagedamage (subject to the rights of Tenants, guests and patrons) (provided, that to the extent that any Individual Property is subject to (x) a Brand Management Agreement, Xxxxxx’s rights shall be subject to the rights of such Brand Manager to the extent that such Brand Manager shall perform such Replacements pursuant to and in accordance with such Brand Management Agreement and Borrower shall enforce all of its rights under such Brand Management Agreement to cause such Replacements to be completed in accordance with the terms thereunder or (y) a Casino Management Agreement, Lender’s rights shall be subject to the rights of such Casino Operator to the extent that such Casino Operator shall perform such Replacements pursuant to and in accordance with such Casino Management Agreement and Borrower shall enforce all of its rights under such Casino Management Agreement to cause such Replacements to be completed in accordance with the terms thereunder). All sums so expended by LenderXxxxxx, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in fact with full power of substitution to complete or undertake such Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Borrower empowers said attorney in fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such Replacements; (ii) to make such additions, changes and corrections to such Replacements as shall be necessary or desirable to complete such ReplacementsReplacement; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be reasonably required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the any Individual Property, or as may be necessary or desirable for the completion of such Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be reasonably required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the any Individual Property or the rehabilitation and repair of the any Individual Property; and (vii) to do any and every reasonable act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) If reasonably determined to be necessary and upon reasonable prior notice, Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and LenderXxxxxx’s agents and representatives (including, without limitation, LenderXxxxxx’s engineer, architect, or inspector) or third third-parties making Replacements pursuant to this Section 7.3.3 to enter onto the each Individual Property during normal business hours (subject to the rights of Tenants under their Leases or Hotel TransactionsLeases, guests and patrons) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the each Individual Property, and to complete any Replacements made pursuant to this Section 7.37.3.3 (provided, that to the extent that any Individual Property is subject to (x) a Brand Management Agreement, Xxxxxx’s rights shall be subject to the rights of such Brand Manager to the extent that such Brand Manager shall perform such Replacements pursuant to and in accordance with such Brand Management Agreement and Borrower shall enforce all of its rights under such Brand Management Agreement to cause such Replacements to be completed in accordance with the terms thereunder or (y) a Casino Management Agreement, Lender’s rights shall be subject to the rights of such Casino Operator to the extent that such Casino Operator shall perform such Replacements pursuant to and in accordance with such Casino Management Agreement and Borrower shall enforce all of its rights under such Casino Management Agreement to cause such Replacements to be completed in accordance with the terms thereunder). Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3. Notwithstanding the foregoing, unless a DSCR Trigger Period or an Event of Default has occurred and is continuing, such inspections shall not take place more than once per year and the cost to Borrower in connection with each shall not exceed Five Thousand and No/100 Dollars ($5,000).
(g) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialmen’s or other liens (except for (i) those Liens existing on the date of this Agreement which have been approved in writing by Lender and (ii) Permitted Indebtedness).
Appears in 1 contract
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable properties first class, full service hotel in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials in connection with the Replacements the total contracted-for payments to which exceed costing in excess of $100,000100,000.00. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner and such failure continues for more than thirty (30) days after notice from Lender to Borrowermanner, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement until such faulty work is corrected and upon the occurrence and continuing of an Event of Default to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s completion or making of such Replacements pursuant to Section 7.3.3(c6.5.3(c) above, Borrower grants Lender from and after the right, occurrence and during the existence continuance of an Event of Default or as necessary to respond to emergency conditions, Lender the right to enter onto the Property and perform any and all work and labor necessary to complete or make such Replacements and/or employ watchmen to protect the Property from damage. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose from and after the occurrence and during the continuance of an Event of Default Borrower constitutes and appoints Lender its true and lawful attorney in fact with full power of substitution to complete or undertake such Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Borrower empowers said attorney in fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such Replacements; (ii) to make such additions, changes and corrections to such Replacements as shall be necessary or desirable to complete such Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 6.5.3 shall: (i) make Lender responsible for making or completing any Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Upon reasonable prior notice to Borrower, Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 6.5.3 to enter onto the Property during normal business hours (subject to the rights of Tenants tenants under their Leases Leases, and without disturbing guests of the Hotel or Hotel Transactionsunreasonably interfering with business operations at the Hotel) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made which Lender has a right to complete pursuant to this Section 7.36.5.
Appears in 1 contract
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable first class, full service retail properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements the total contracted-for payments to which exceed $100,000performed by Borrower. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s completion or making of such the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the Property and perform any and all work and labor necessary to complete or make such the Replacements and/or employ watchmen to protect the Property from damage, subject to the rights of Tenants. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedrevoked but shall only be effective following an Event of Default. Borrower empowers said attorney in attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such the Replacements as shall be necessary or desirable to complete such the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(1) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Property at Borrower’s expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialman’s or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic’s or materialmen’s liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Performance of Replacements. (a) Borrower shall make make, or cause Master Lessee to make be made, Replacements when required in order to keep the Property in condition and repair consistent with other comparable properties first class, full service hotels in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deterioratingdeteriorating beyond normal wear and tear. Borrower shall complete complete, or cause Master Lessee to complete be completed, all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement. Borrower shall provide to Lender, or cause Manager to provide to Lender during the performance of any Replacements copies of receipts evidencing that such Replacements have been made and paid for, together with a certification from Borrower (or Manager on behalf of Borrower) that such Replacements evidenced by such receipts have been made.
(bi) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials in connection with a single Replacement (or multiple Replacements which together constitute a single project) to be funded from the Replacements Replacement Reserve Account, the total contracted-cost of which is equal to or greater than $500,000.00 which approval shall not be unreasonably withheld. In the event that any materials for payments to which exceed $100,000the request is made have not been incorporated into the Property, such materials shall be on site at the Property and be properly secured. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract entered into by Borrower to Lender.
(ii) With regard to any action described in this Section 7.3.3(b) for which Borrower Lender’s consent is a partyrequired, Lender shall not withhold its consent or cause Master Lessee disapproval to assign to any such action for more than ten (10) Business Days after request for approval thereof has been made by Borrower, accompanied by a detailed description of the request for which approval is sought, provided that Borrower submits such request for Lender’s approval in an envelope labeled “Priority” and then delivered to Lender by overnight delivery and otherwise in accordance with the provisions of Section 10.6 and which request shall assign state at the top of the first page in bold lettering in 14 pt. font “LENDER’S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER.” In the event that Lender fails to Lendereither approve such request or disapprove such request (such disapproval stating the reasons for such disapproval) for more than ten (10) Business Days after receipt thereof, any Borrower shall deliver to Lender a second request, which second request shall contain the material transmitted with the first request, in an envelope labeled “Priority” and delivered to Lender by overnight delivery and otherwise in accordance with the provisions of Section 10.6 and which request shall state at the top of the first page in bold lettering in 14 pt. font “SECOND REQUEST: LENDER’S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER.” In the event that Lender fails to either approve such contract second request or subcontract to which Master Lessee is a partydisapprove such second request (such disapproval stating the reasons for such disapproval) for more than ten (10) Business Days after receipt thereof, the action that was the subject of said request shall be deemed approved.
(c) In the event that Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner and such failure continues for more than thirty (30) days after notice from Lender to Borrowermanner, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and in the event that such Replacement is deemed by Lender to affect the life, health or safety of Persons which may be present at the Property, to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further provided, that Lender shall provide five (5) days prior to notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunderbefore taking such action.
(d) In order to facilitate Lender’s completion or making of such Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender (and shall cause Operating Lessee to grant to Lender) the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the Property and perform any and all work and labor necessary to complete or make such Replacements and/or employ watchmen to protect the Property from damage. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution substitution, but exercisable only to the extent Lender is authorized to take action on behalf of Borrower pursuant to clause (c) preceding, to complete or undertake such Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Borrower empowers said attorney in attorney-in-fact as follows: :
(i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such Replacements; (ii) to make such additions, changes and corrections to such Replacements as shall be necessary or desirable to complete such Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such Replacements, or for clearance of title; and (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 7.3.3(c) to enter onto the Property during normal business hours (subject to the rights of Tenants tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to Section 7.3.3(c). Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.37.3.3(f) or the completion of Replacements pursuant to Section 7.3.3(c).
(g) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialmen’s or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender or otherwise contested in accordance with Section 5.1.2 hereof).
(h) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(i) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.
Appears in 1 contract
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable first class, full service office properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements the total contracted-for payments to which exceed $100,000performed by Borrower. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s completion or making of such the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the Property and perform any and all work and labor necessary to complete or make such the Replacements and/or employ watchmen to protect the Property from damage, subject to the rights of Tenants. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedrevoked but shall only be effective following an Event of Default. Borrower empowers said attorney in attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such the Replacements as shall be necessary or desirable to complete such the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Property at Borrower’s expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialman’s or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic’s or materialmen’s liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.
Appears in 1 contract
Samples: Loan Agreement (Inland American Real Estate Trust, Inc.)
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable first class, full service retail properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements the total contracted-for payments to which exceed $100,000performed by Borrower. Upon Lender’s 's request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s 's completion or making of such the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the Property and perform any and all work and labor necessary to complete or make such the Replacements and/or employ watchmen to protect the Property from damage, subject to the rights of Tenants. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedrevoked but shall only be effective following an Event of Default. Borrower empowers said attorney in attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such the Replacements as shall be necessary or desirable to complete such the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s 's agents and representatives (including, without limitation, Lender’s 's engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender's representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Property at Borrower's expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an 62 independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic's, materialman's or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic's or materialmen's liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen's compensation insurance, builder's risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials in connection with the Replacements the total contracted-for payments to which exceed $100,000Replacements. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner and such failure continues for more than thirty (30) days after notice from Lender to Borrowermanner, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s completion or making of such Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the Property and perform any and all work and labor necessary to complete or make such Replacements and/or employ watchmen to protect the Property from damage. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the MortgagePledge Agreement. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in fact with full power of substitution to complete or undertake such Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Borrower empowers said attorney in fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such Replacements; (ii) to make such additions, changes and corrections to such Replacements as shall be necessary or desirable to complete such Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s agents and representatives (including, without limitation, including Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Property at Borrower’s expense prior to making a monthly disbursement from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialmen’s or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic’s or materialmen’s liens or other liens of any nature have been placed against the Property since the date of recordation of the related Security Instrument and that title to the Property is free and clear of all Liens (other than the lien of the related Security Instrument and any other Liens previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (TNP Strategic Retail Trust, Inc.)
Performance of Replacements. (a) Borrower shall make or cause Master Lessee Replacements to make Replacements be made when required in order to keep the Property in condition and repair consistent with other comparable properties hotels in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete completed all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement. Borrower shall notify Lender of any request for disbursement from the Replacement Reserve Fund under the Mortgage Loan Documents simultaneously with such disbursement request.
(b) In connection with Replacements for which payments or reimbursements are requested from the Replacement Reserve Account, Lender reserves the right, at its option, to approve each contract or work order with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials in connection with the Replacements in the total contracted-for payments to which event amounts payable under such contract or work order exceed $100,000250,000.00, such approval not to be unreasonably withheld, conditioned or delayed. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In Upon the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner occurrence and such failure continues for more than thirty (30) days after notice from Lender to Borrowerduring the continuance of an Event of Default, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement from the Replacement Reserve Account for such any unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s completion or making of the Replacements upon a default which continues after the expiration of all applicable cure periods (during which period Borrower has not cured such Replacements pursuant to Section 7.3.3(cdefault) aboveunder the Mortgage Loan Documents, Borrower grants Lender Lender, and shall cause Mortgage Borrower to grant Lender, the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the Property upon prior written notice to Borrower and subject to the rights of tenants and hotel guests and perform any and all work and labor necessary to complete or make such the Replacements and/or employ watchmen to protect the Property from damage. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, Lender shall be deemed to have been advanced under the Loan to Borrower and secured by the MortgageSecurity Instruments. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower and as owner of beneficial interests in Mortgage Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Borrower empowers said attorney in fact as follows: Such
(i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such the Replacements as shall be reasonably necessary or desirable to complete such the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be reasonably required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower for itself or as owner of beneficial interest in Mortgage Borrower, which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf behalf, itself and/or as owner of beneficial interests in the Mortgage Borrower to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permitbe permitted, Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours and upon prior written notice (subject to the rights of Tenants tenants under their Leases or Hotel Transactionsand hotel patrons) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Property at Borrower’s expense prior to making a monthly disbursement in excess of $250,000 for the Property from the Replacement Reserve Account in order to verify completion of the Replacements for which payment or reimbursement is sought unless Mortgage Lender has verified such completion and Borrower has provided Lender with evidence of such verification. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialmen’s or other Liens (except for Permitted Encumbrances).
(i) Before each disbursement from the Replacement Reserve Account in excess of $250,000.00 for the Property, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic’s or materialmen’s Liens or other Liens of any nature (other than Liens being contested in good faith in accordance with the terms hereof) have been placed against the Property since the date of recordation of the mortgage and that title to the Property is free and clear of all Liens (other than Permitted Encumbrances), unless such search has been performed by Mortgage Lender and Borrower has provided Lender with such search evidencing compliance with this provision.
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement to the extent not already provided by Borrower’s existing insurance coverage. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.
(l) Notwithstanding the foregoing, Borrower shall cause Mortgage Borrower to commence the Replacements at the casino costing approximately $3,200,000.00 which have been budgeted for in the Casino Budget and Borrower shall cause Mortgage Borrower to cause such Replacements to be substantially underway prior to the initial Maturity Date.
Appears in 1 contract
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the each Individual Property in condition and repair consistent with other comparable properties of type, quality and size in the same market segment in the metropolitan area in which the respective Individual Property is located, and to keep the each Individual Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete be completed all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials in connection with the Replacements costing, in the total contracted-for payments aggregate, in excess of $100,000 with respect to which exceed $100,000each Individual Property, such approval not to be unreasonably withheld, conditioned or delayed. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner and such failure continues for more than thirty (30) days after notice from Lender to Borrowermanner, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and and, during the existence of an Event of Default, to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s completion or making of such the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the any applicable Individual Property and perform any and all work and labor necessary to complete or make such the Replacements and/or employ watchmen to protect the Property such Individual Properties from damage. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the MortgageSecurity Instruments. For this purpose purpose, Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Borrower empowers said attorney in attorney-in-fact as follows: :
(i) to use any funds in the Replacement Reserve Account Fund for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such the Replacements as shall be necessary or desirable to complete such the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the any Individual Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the any Individual Property or the rehabilitation and repair of the any Individual Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the each Individual Property during normal business hours and upon reasonable prior notice (subject to the rights of Tenants tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the each Individual Property, and to complete any Replacements made pursuant to this Section 7.37.
Appears in 1 contract
Samples: Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable first class, full service retail properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials under contracts for an amount in excess of $100,000 in connection 66 with the Replacements the total contracted-for payments to which exceed $100,000performed by Borrower. Upon Lender’s 's request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s 's completion or making of such the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the Property and perform any and all work and labor necessary to complete or make such the Replacements and/or employ watchmen to protect the Property from damage, subject to the rights of Tenants. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedrevoked but shall only be effective following an Event of Default. Borrower empowers said attorney in attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such the Replacements as shall be necessary or desirable to complete such the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s 's agents and representatives (including, without limitation, Lender’s 's engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to 67 complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender's representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Property at Borrower's expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic's, materialman's or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic's or materialmen's liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen's compensation insurance, builder's risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable properties first class, full service hotels in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials in connection with the Replacements the total contracted-for payments to which exceed costing in excess of $100,000100,000.00. Upon Lender’s request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner and such failure continues for more than thirty (30) days after notice from Lender to Borrowermanner, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement until such faulty work is corrected and upon the occurrence and continuing of an Event of Default to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s completion or making of such Replacements pursuant to Section 7.3.3(c6.5.3(c) above, Borrower grants Lender from and after the right, occurrence and during the existence continuance of an Event of Default or as necessary to respond to emergency conditions, Lender the right to enter onto the Property and perform any and all work and labor necessary to complete or make such Replacements and/or employ watchmen to protect the Property from damage. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose from and after the occurrence and during the continuance of an Event of Default Borrower constitutes and appoints Lender its true and lawful attorney in fact with full power of substitution to complete or undertake such Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Borrower empowers said attorney in fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such Replacements; (ii) to make such additions, changes and corrections to such Replacements as shall be necessary or desirable to complete such Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 6.5.3 shall: (i) make Lender responsible for making or completing any Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any Replacements; or (iv) obligate Lender to demand from From Borrower additional sums to make or complete any Replacement.
(f) . Upon reasonable prior notice to Borrower, Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 6.5.3 to enter onto the Property during normal business hours (subject to the rights of Tenants tenants under their Leases Leases, and without disturbing guests of the Hotel or Hotel Transactionsunreasonably interfering with business operations at the Hotel) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made which Lender has a right to complete pursuant to this Section 7.36.5.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 6.5.3(f) or the completion of Replacements pursuant to this Section 6.5.3.
Appears in 1 contract
Performance of Replacements. (a) Borrower shall, or shall make or cause Master Lessee to CPLV Tenant to, make Replacements when required in order to keep the Property in condition and repair consistent with other comparable properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall, or shall complete or cause Master Lessee to CPLV Tenant to, complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its optionoption (except in the event Replacements are being made by CPLV Tenant in accordance with the terms of the CPLV Lease, the CPLV Lease SNDA and the terms hereunder), to approve each contract all contracts or work order orders in excess of $2,000,000 with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials in connection with the Replacements the total contracted-for payments Replacements, not to which exceed $100,000be unreasonably withheld, conditioned or delayed. Upon Lender’s request, Borrower shall, or shall cause CPLV Tenant to, assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign in excess of $2,000,000 to Borrower, and then shall assign to be collaterally assigned by Borrower to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its good faith reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner and such failure continues for more than thirty manner, upon three (303) days after Business Days written notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and in the event such Replacement shall not be performed in workmanlike and timely manner within ten (10) Business Days of such notice, during an Event of Default (other than a CPLV Lease Default so long as Borrower is proceeding to cure subject to the terms and within the time periods set forth in Section 8.3 hereof), Lender may elect to proceed under existing contracts or to contract with third parties to complete such Replacement and subject to the CPLV Lease SNDA, to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s completion or making of such Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, to enter onto the Property and perform any and all work and labor necessary to complete or make such Replacements and/or employ watchmen to protect the Property from damage. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in fact with full power of substitution to complete or undertake such Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Borrower empowers said attorney in fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such Replacements; (ii) to make such additions, changes and corrections to such Replacements as shall be reasonably necessary or desirable to complete such Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be reasonably required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be reasonably necessary or desirable for the completion of such Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this AgreementSection 7.3.3.
(ed) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any Replacements; or (iv) obligate Lender to demand from Borrower or CPLV Tenant additional sums to make or complete any Replacement.
(fe) If reasonably determined to be necessary by Lender in connection with Replacements in excess of $5,000,000, Borrower shall permitshall, and shall cause Master Lessee to permitCPLV Tenant to, permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours and upon prior notice to Borrower (subject to the rights of Tenants under their Leases or Hotel Transactionsother third-party occupants and applicable Gaming Laws) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and, subject to the CPLV Lease SNDA during an Event of Default (other than a CPLV Lease Default so long as Borrower is proceeding to cure subject to the terms and within the time periods set forth in Section 8.3 hereof), to complete any Replacements made pursuant to this Section 7.3.
Appears in 1 contract
Samples: Loan Agreement
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable first class, full service retail properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements the total contracted-for payments to which exceed $100,000performed by Borrower. Upon Lender’s 's request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s 's completion or making of such the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the Property and perform any and all work and labor necessary to complete or make such the Replacements and/or employ watchmen to protect the Property from damage, subject to the rights of Tenants. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. revoked but shall only be effective following an Event of Default, Borrower empowers said attorney in attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such the Replacements as shall be necessary or desirable to complete such the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: ; (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s 's agents and representatives (including, without limitation, Lender’s 's engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender's representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Property at Borrower's expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an 62 independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic's, materialman's or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic's or materialmen's liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen's compensation insurance, builder's risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable first class, retail properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements the total contracted-for payments to which exceed $100,000performed by Borrower. Upon Lender’s 's request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s 's completion or making of such the Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the Property and perform any and all work and labor necessary to complete or make such the Replacements and/or employ watchmen to protect the Property from damage, subject to the rights of Tenants. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For 66 this purpose Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedrevoked but shall only be effective following an Event of Default. Borrower empowers said attorney in attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such the Replacements as shall be necessary or desirable to complete such the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s 's agents and representatives (including, without limitation, Lender’s 's engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender's representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Property at Borrower's expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic's, materialman's or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic's or materialmen's liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen's compensation insurance, builder's risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Performance of Replacements. (a) Borrower shall, or shall make or cause Master Lessee to CPLV Tenant to, make Replacements when required in order to keep the Property in condition and repair consistent with other comparable properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall, or shall complete or cause Master Lessee to CPLV Tenant to, complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its optionoption (except in the event Replacements are being made by CPLV Tenant in accordance with the terms of the CPLV Lease, the CPLV Lease SNDA and the terms hereunder), to approve each contract all contracts or work order orders in excess of $2,000,000 with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials in connection with the Replacements the total contracted-for payments Replacements, not to which exceed $100,000be unreasonably withheld, conditioned or delayed. Upon Lender’s request, Borrower shall, or shall cause CPLV Tenant to, assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign in excess of $2,000,000 to Borrower, and then shall assign to be collaterally assigned by Borrower to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its good faith reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner and such failure continues for more than thirty manner, upon three (303) days after Business Days written notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and in the event such Replacement shall not be performed in workmanlike and timely manner within ten (10) Business Days of such notice, during an Event of Default (other than a CPLV Lease Default so long as Borrower is proceeding to cure subject to the terms and within the time periods set forth in Section 8.3 hereof), Lender may elect to proceed under existing contracts or to contract with third parties to complete such Replacement and subject to the CPLV Lease SNDA, to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s completion or making of such Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, to enter onto the Property and perform any and all work and labor necessary to complete or make such Replacements and/or employ watchmen to protect the Property from damage. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in fact with full power of substitution to complete or undertake such Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Borrower empowers said attorney in fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such Replacements; (ii) to make such additions, changes and corrections to such Replacements as shall be necessary or desirable to complete such Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants under their Leases or Hotel Transactions) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.3.
Appears in 1 contract
Performance of Replacements. (a) Borrower shall make or cause Master Lessee to make Replacements when required in order to keep the Property in condition and repair consistent with other comparable first class, full service retail properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating. Borrower shall complete or cause Master Lessee to complete all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement.
(b) Lender reserves the right, at its option, to approve each contract all contracts or work order orders with any materialmanmaterialmen, mechanicmechanics, suppliersuppliers, subcontractorsubcontractors, contractor contractors or other party parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the Replacements the total contracted-for payments to which exceed $100,000performed by Borrower. Upon Lender’s 's request, Borrower shall assign to Lender any such contract or subcontract to which Borrower is a party, or cause Master Lessee to assign to Borrower, and then shall assign to Lender, any such contract or subcontract to which Master Lessee is a party.
(c) In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner manner, and such failure continues to exist for more than thirty (30) days after notice from Lender to Borrower, Lender shall have the option (upon five (5) Business Days’ notice to Borrower, except in the case of an emergency) to withhold disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any further prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender’s 's completion or making of such the Replacements pursuant to Section 7.3.3(c7.3.3(e) above, Borrower grants Lender the right, during the existence of an Event of Default or as necessary to respond to emergency conditions, right to enter onto the Property and perform any and all work and labor necessary to complete or make such the Replacements and/or employ watchmen to protect the Property from damage, subject to the rights of Tenants. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgage. For this purpose Borrower constitutes and appoints Lender its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedrevoked but shall only be effective following an Event of Default. Borrower empowers said attorney in attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such the Replacements as shall be necessary or desirable to complete such the Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against the Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (vii) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit, and shall cause Master Lessee to permit, permit Lender and Lender’s 's agents and representatives (including, without limitation, Lender’s 's engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto the Property during normal business hours (subject to the rights of Tenants tenants under their Leases or Hotel TransactionsLeases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at the Property, and to complete any Replacements made pursuant to this Section 7.37.3.3. Borrower shall cause all contractors and subcontractors to cooperate with Lender or Lender's representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Property at Borrower's expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic's, materialman's or other liens (except for those Liens existing on the date of this Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve Account, Lender may require Borrower to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic's or materialmen's liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen's compensation insurance, builder's risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
