Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise). Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual Property or for costs which are to be reimbursed from funds held in the Required Repair. (b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials. Except as provided in Section 9.7(d), each request for disbursement shall be made only after completion of the Required Repair or Replacement, as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance. (c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request. (d) If the cost of any item of Required Work exceeds $250,000, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) the materials for which the request is made are on site at any Individual Property and are properly secured or have been installed in any Individual Property, (B) all other conditions in this Agreement for disbursement have been satisfied, and (C) in the case of a Replacement are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required. (e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested. (f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account. (g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements. (h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof. (i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents. (j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 5 contracts
Samples: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts amounts, if any, from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, exists or (zy) disburse funds (if any) from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required Repairany other Reserve Account.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each Each request for disbursement in excess from any of $250,000 the Reserve Accounts shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from . With each contractor, supplier, materialman, mechanic or subcontractor request Borrower shall certify that all Required Work has been performed in accordance with respect to the completion of its work or delivery of its materialsall Legal Requirements. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Replacement (or Replacement, as applicable, the portion thereof completed in accordance with Section 9.5(d)) for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Upon Borrower's request, Lender shall disburse funds from the Replacement Reserve Account to Borrower on a monthly basis, and Borrower shall use such funds to pay all invoices in connection with the Required Work with respect to which a disbursement is requested. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $10,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request).
(d) If (i) the cost of any item of Required Work exceeds $250,00025,000 and (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s 's judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair AccountIntentionally deleted.
(g) Intentionally deleted.
(h) Lender’s 's disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hi) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at In allocating any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required paymentssuch excess, Lender shall notify Borrower may deal with the Person shown on Lender's records as being the owner of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereofProperty.
(ij) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 2 contracts
Samples: Loan Agreement (Manufactured Home Communities Inc), Loan Agreement (Manufactured Home Communities Inc)
Release of Reserve Funds. (a) Upon written request from a Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to the related Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse the related Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) % of the original estimated cost of such Required Repair as set forth on Schedule 9.1I, unless Lender has agreed to reimburse such Borrower for such excess cost pursuant to Section 9.7(f9.5(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse such Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) % of the then current estimated cost of completing all remaining Required Repairs for the applicable related Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse the related Borrower for the costs of routine repairs or maintenance to any the related Individual Property or for costs which are to be reimbursed from funds held in the Required RepairRepair Account.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each Each request for disbursement in excess from any of $250,000 the Reserve Accounts shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from . With each contractor, supplier, materialman, mechanic or subcontractor request the related Borrower shall certify that all Required Work has been performed in accordance with respect to the completion of its work or delivery of its materialsall Legal Requirements. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Repair, Replacement (or Replacement, as applicablethe portion thereof completed in accordance with Section 9.5(d)), for which disbursement is requested. The related Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Borrowers shall pay all invoices in connection with the Required Work with respect to which a disbursement is requested prior to submitting such request for disbursement from the Reserve Accounts or, at the request of a Borrower, Lender will issue joint checks, payable to such Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender’s disbursement of the Reserve Funds. In addition, as a condition to any disbursement, Lender may require such Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $10,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any the related Individual Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request).
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any an Individual Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower Borrowers shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event any Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse such Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1I, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) % of the estimated cost of such Required Repair as set forth on Schedule 9.1 I (in either case, an “Additional Required Repair”), such Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Replacement Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable related Individual Property specified on Schedule 9.1I, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) In the event any Borrower requests a disbursement from the Replacement Reserve Account to reimburse such Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Replacements specified in the related Physical Conditions Report prepared in connection with the closing of the Loan (an “Additional Replacement”), such Borrower shall disclose in writing to Lender the reason why funds in the Replacement Reserve Account should be used to pay for such Additional Replacement. If Lender determines that (i) such Additional Replacement is of the type intended to be covered by the Replacement Reserve Account, (ii) such Additional Replacement is not covered or is not of the type intended to be covered by the Required Repair Account, (iii) costs for such Additional Replacement are reasonable, (iv) the funds in the Replacement Reserve Account are sufficient to pay for such Additional Replacement and all other Replacements for the Property specified in the Physical Conditions Report, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Replacement Reserve Account.
(h) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hi) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to the related Borrower or credit such excess against future payments to be made to that Reserve Account. In allocating any such excess, Lender may deal with the Person shown on Lender’s records as being the owner of the related Individual Property. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify the related Borrower of such determination and the related Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to the related Borrower requesting payment thereof.
(ij) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower Borrowers from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(jk) Any Reserve Funds attributable Upon the earlier to an Individual Property that has been released from occur of (i) the Lien timely completion of the Mortgages all Required Repairs and any Additional Required Repairs, if any, in accordance with the terms hereof requirements of this Agreement, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Required Repair Account shall be disbursed returned to the related Borrower within thirty or the Person shown on Lender’s records as being the owner of the related Individual Property and no other party shall have any right or claim thereto.
(301) days Upon payment in full of such releasethe Debt, all amounts remaining on deposit, if any, in the Replacement Reserve Account shall be returned to Borrowers or the Person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto.
Appears in 2 contracts
Samples: Loan Agreement (Extra Space Storage Inc.), Loan Agreement (Extra Space Storage Inc.)
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required RepairRepair Account.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 50,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, and (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials. Except as provided in Section 9.7(d), each request for disbursement shall be made only after completion of the Required Repair or ReplacementReplacement (or the portion thereof completed in accordance with Section 9.7(d)), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request.
(d) If the cost of any item of Required Work exceeds $250,00050,000, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (B) all other conditions in this Agreement for disbursement have been satisfied, and (C) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s 's judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of of: (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five percent (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “"Additional Required Repair”"), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Replacement Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s 's disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 2 contracts
Samples: Loan Agreement (MVP REIT II, Inc.), Loan Agreement (MVP REIT, Inc.)
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) % of the original estimated cost of such Required Repair as set forth on Schedule 9.1I, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f9.05(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) % of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required RepairRepair Account.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each Each request for disbursement in excess from any of $250,000 the Reserve Accounts shall be on a form provided or otherwise reasonably approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from . With each contractor, supplier, materialman, mechanic or subcontractor request Borrower shall certify that all Required Work has been performed in compliance in all material respects with respect to the completion of its work or delivery of its materialsall Legal Requirements. Except as provided in Section 9.7(d9.05(d), each request for disbursement shall be made only after completion of the Required Repair Repair, Replacement (or Replacementthe portion thereof completed in accordance with Section 9.05(d)), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence reasonably satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Borrower shall pay all invoices in connection with the Required Work with respect to which a disbursement is requested prior to submitting such request for disbursement from the Reserve Accounts or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender’s disbursement of the Reserve Funds. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $100,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any the related Individual Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request).
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000 and (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any the related Individual Property and are properly secured or have been installed in any the related Individual Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s reasonable judgment, sufficient to complete such Replacement and the other Replacements when requiredspecified in Schedule II (and which have not yet been completed and paid in full).
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event any Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1I, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) % of the estimated cost of such Required Repair as set forth on Schedule 9.1 I (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender reasonably determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Replacement Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable related Individual Property specified on Schedule 9.1I, and (v) all other conditions for disbursement under this Agreement have been met, Lender shall disburse funds from the Required Repair Account in accordance with the terms and conditions of this Section 9.05.
(g) In the event any Borrower requests a disbursement from the Replacement Reserve Account to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Replacements specified in the Physical Conditions Report prepared in connection with the closing of the Loan (an “Additional Replacement”), Borrower shall disclose in writing to Lender the reason why funds in the Replacement Reserve Account should be used to pay for such Additional Replacement. If Lender reasonably determines that (i) such Additional Replacement is of the type intended to be covered by the Replacement Reserve Account, (ii) such Additional Replacement is not covered or is not of the type intended to be covered by the Required Repair Account, (iii) costs for such Additional Replacement are reasonable, (iv) the funds in the Replacement Reserve Account are sufficient to pay for such Additional Replacement and all other Replacements for the Property specified in Schedule II (and which have not yet been completed and paid in full), and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair AccountReplacement Reserve Account in accordance with this Section 9.05.
(gh) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner reasonably satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hi) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall shall, at Borrower’s option, promptly either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after written notice from Lender to Borrower requesting payment thereof.
(ij) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(jk) Any Reserve Funds attributable Upon the earlier to an Individual Property that has been released from occur of (i) the Lien timely completion of the Mortgages all Required Repairs and any Additional Required Repairs, if any, in accordance with the terms hereof requirements of this Agreement, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Required Repair Account shall be disbursed returned to Borrower within thirty and no other party shall have any right or claim thereto.
(30l) days Upon payment in full of such releasethe Debt, all amounts remaining on deposit, if any, in the Replacement Reserve Account shall be returned to Borrower and no other party shall have any right or claim thereto.
Appears in 2 contracts
Samples: Loan Agreement (Bon Ton Stores Inc), Loan Agreement (Bon Ton Stores Inc)
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Leasing Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) Tenant Improvements and/or Leasing Commissions incurred in connection with Leases entered into in accordance with the Loan Documents, or, with respect to $5,155,833 of the original estimated cost of deposit made on the date hereof, those Leases entered into with the TI/LC Tenants, provided that (A) such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower Leasing Commissions are reasonable and customary for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Reserve Account properties similar to the extent necessary to pay Property and the portion of the Property leased for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management feeswhich such Leasing Commissions are due, and other similar fees, whether owed to any Manager or otherwise). Notwithstanding the preceding sentence, in no event shall Lender be required to (xB) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after such Leasing Commissions are determined pursuant to arm’s-length transactions between Borrower and any leasing agent to which a Leasing Commission is due.
(b) Each request for disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual Property or for costs which are to be reimbursed from funds held in the Required Repair.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, made and (iii) include, if such request for disbursement is in connection with Tenant Improvements, a certificate from the Tenant(s) for which the Tenant Improvements have been performed stating that such Tenant Improvements have been completed in a manner satisfactory and acceptable to such Tenant(s) and (unless disbursement is requested by pursuant to Section 9.5(d)), such Tenant(s) has accepted the premises demised under the applicable Lease(s), and containing such other information as Lender may require, in form and substance reasonably satisfactory to Lender, conditional lien waivers and/or if such request for disbursement is in connection with Leasing Commissions, a certificate from the leasing agent that no further sums are due to it in connection with the applicable Lease. With each contractor, supplier, materialman, mechanic request Borrower shall certify that all Required Work has been or subcontractor will be performed in accordance with respect to the completion of its work or delivery of its materialsall Legal Requirements. With each request Borrower shall certify that all Required Work has been performed in accordance with all Legal Requirements. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Repair, Replacement or ReplacementTenant Improvement (or the portion thereof completed in accordance with Section 9.5(d)), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Borrower shall use each disbursement to pay all invoices in connection with the Required Work with respect to which such disbursement is requested or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. Lender may require in its sole discretion a conditional waiver of lien (conditioned only on payment) from each Person receiving payment prior to Lender’s disbursement of the Reserve Funds. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $10,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request). In the case of Leasing Commissions, payment shall be made to any leasing agent to which a Leasing Commission is due in the amount of invoices submitted by such leasing agent, provided all of the other conditions for disbursements for such Leasing Commissions are satisfied in the judgment of Lender.
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work or Leasing Commission for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hg) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. In allocating any such excess, Lender may deal with the Person shown on Lender’s records as being the owner of the Property. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(ih) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(i) Upon the earlier to occur of (i) the completion of all Tenant Improvements and the full performance by the leasing agent of its obligations with respect to any Leasing Commissions, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Leasing Reserve Account shall be returned to Borrower or the Person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien Upon payment in full of the Mortgages Debt in accordance with this Agreement, all amounts remaining on deposit, if any, in the terms hereof Reserve Accounts, shall be disbursed returned to Borrower within thirty (30) days or the Person shown on Lender’s records as being the owner of such releasethe Property, and no other party shall have any right or claim thereto.
Appears in 2 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) % of the original estimated cost of such Required Repair as set forth on Schedule 9.1I, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f9.5(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) % of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required Repair.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials. Except as provided in Section 9.7(d), each request for disbursement shall be made only after completion of the Required Repair or Replacement, as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request.
(d) If the cost of any item of Required Work exceeds $250,000, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) the materials for which the request is made are on site at any Individual Property and are properly secured or have been installed in any Individual Property, (B) all other conditions in this Agreement for disbursement have been satisfied, and (C) in the case of a Replacement are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 2 contracts
Samples: Loan Agreement (Sun Communities Inc), Loan Agreement (Sun Communities Inc)
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) % of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f9.5(f)) or ), (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements or (including iii) the Leasing Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of Tenant Improvements and/or Leasing Commissions incurred in both casesconnection with Leases entered into in accordance with the Loan Documents, without limitation, any project management fees, construction management feesprovided that (A) such Leasing Commissions are reasonable and customary for properties similar to the Property and the portion of the Property leased for which such Leasing Commissions are due, and other similar fees(B) the amount of such Leasing Commissions are determined pursuant to arm’s-length transactions between Borrower and any leasing agent to which a Leasing Commission is due, whether owed to and excluding any Manager Leasing Commissions which shall be due any member, general partner or otherwise)shareholder of Borrower or any Affiliate of Borrower. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) % of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required RepairRepair Account or for Tenant Improvements and Leasing Commissions.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 50,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials, and (iv) include, if such request for disbursement is in connection with Tenant Improvements, a certificate from the Tenant(s) for which the Tenant Improvements have been performed stating that such Tenant Improvements have been completed in a manner satisfactory and acceptable to such Tenant(s) and (unless disbursement is requested pursuant to Section 9.5(d)), such Tenant(s) has accepted the premises demised under the applicable Lease(s), and containing such other information as Lender may require, in form and substance reasonably satisfactory to Lender, and/or if such request for disbursement is in connection with Leasing Commissions, a certificate from the leasing agent that no further sums are due to it in connection with the applicable Lease. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Repair, Replacement or ReplacementTenant Improvement (or the portion thereof completed in accordance with Section 9.5(d)), or the full performance by the leasing agent of its obligations (in the case of Leasing Commissions), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request. In the case of Leasing Commissions, payment shall be made to any leasing agent to which a Leasing Commission is due in the amount of invoices submitted by such leasing agent, provided all of the other conditions for disbursements for such Leasing Commissions are satisfied in the judgment of Lender.
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work or Leasing Commission for which the disbursement is requested.
(f) In the event any Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) % of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Replacement Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) In the event any Borrower requests a disbursement from the Replacement Reserve Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Replacements specified in the Property Condition Report prepared in connection with the closing of the Loan (an “Additional Replacement”), Borrower shall disclose in writing to Lender the reason why funds in the Replacement Reserve Account should be used to pay for such Additional Replacement. If Lender determines that (i) such Additional Replacement is of the type intended to be covered by the Replacement Reserve Account, (ii) such Additional Replacement is not covered or is not of the type intended to be covered by the Required Repair Account, (iii) costs for such Additional Replacement are reasonable, (iv) the funds in the Replacement Reserve Account are sufficient to pay for such Additional Replacement and all other Replacements for the Property specified in the Property Condition Report, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Replacement Reserve Account.
(h) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hi) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(ij) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(jk) Any Reserve Funds attributable Upon the earlier to an Individual Property that has been released from occur of (i) the Lien timely completion of the Mortgages all Required Repairs and any Additional Required Repairs, if any, in accordance with the terms hereof requirements of this Agreement, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Required Repair Account shall be disbursed returned to Borrower within thirty or the Person shown on Lender's records as being the owner of the Property and no other party shall have any right or claim thereto.
(30l) days Upon payment in full of such releasethe Debt, all amounts remaining on deposit, if any, in the Replacement Reserve Account shall be returned to Borrower or the Person shown on Lender's records as being the owner of the Property and no other party shall have any right or claim thereto.
(m) Upon the payment in full of the Debt, all amounts remaining on deposit, if any, in the Leasing Reserve Account shall be returned to Borrower or the Person shown on Lender's records as being the owner of the Property and no other party shall have any right or claim thereto.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (yi) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (zii) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual Property or for costs which are to be reimbursed from funds held in the Required RepairProperty.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be completed lien free and paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 25,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials, to the extent the cost of such work exceeds $100,000. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Replacement (or Replacement, as applicable, the portion thereof completed in accordance with Section 9.5(d)) for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request.
(d) If (i) the cost of any item of Required Work exceeds $250,000100,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments (provided, Lender shall not be entitled to approve the contract if Lender has already approved such contract pursuant to the provisions of Section 9.4(a)), a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 1 contract
Samples: Loan Agreement (Sun Communities Inc)
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) % of the original estimated cost of such Required Repair as set forth on Schedule 9.1I, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f9.5(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) % of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required RepairRepair Account.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each Each request for disbursement in excess from any of $250,000 the Reserve Accounts shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from . With each contractor, supplier, materialman, mechanic or subcontractor request Borrower shall certify that all Required Work has been performed in accordance with respect to the completion of its work or delivery of its materialsall Legal Requirements. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Repair, Replacement (or Replacementthe portion thereof completed in 50 accordance with Section 9.5(d)), or the full performance by the leasing agent of its obligations (in the case of Leasing Commissions), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Borrower shall pay all invoices in connection with the Required Work with respect to which a disbursement is requested prior to submitting such request for disbursement from the Reserve Accounts or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender's disbursement of the Reserve Funds. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $10,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request).
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s 's judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.,
(f) In the event any Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1I, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) % of the estimated cost of such Required Repair as set forth on Schedule 9.1 I (in either case, an “Additional Required Repair”"ADDITIONAL REQUIRED REPAIR"), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Replacement Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1I, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) In the event any Borrower requests a disbursement from the Replacement Reserve Account to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Replacements specified in the Physical Conditions Report prepared in connection with the closing of the Loan (an "ADDITIONAL REPLACEMENT"), Borrower shall disclose in writing to Lender the reason why funds in the Replacement Reserve Account should be used to pay for such Additional Replacement. If Lender determines that (i) such Additional Replacement is of the type intended to be covered by the Replacement Reserve Account, (ii) such Additional Replacement is not covered or is not of the type intended to be covered by the Required Repair Account, (iii) costs for such Additional Replacement are reasonable, (iv) the funds in the Replacement Reserve Account a re sufficient to pay for such Additional Replacement and all other Replacements for the Property specified in the Physical Conditions Report, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Replacement Reserve Account.
(h) Lender’s 's disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hi) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. In allocating any such excess, Lender may deal with the Person shown on Lender's records as being the owner of the Property. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(ij) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(jk) Any Reserve Funds attributable Upon the earlier to an Individual Property that has been released from occur of (i) the Lien timely completion of the Mortgages all Required Repairs and any Additional Required Repairs, if any, in accordance with the terms hereof requirements of this Agreement, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Required Repair Account shall be disbursed returned to Borrower within thirty or the Person shown on Lender's records as being the owner of the Property and no other party shall have any right or claim thereto.
(30l) days Upon payment in full of such releasethe Debt, all amounts remaining on deposit, if any, in the Replacement Reserve Account shall be returned to Borrower or the Person shown on Lender's records as being the owner of the Property and no other party shall have any right or claim thereto.
(m) Upon the earlier to occur of (i) the completion of all Tenant Improvements and the full performance by the leasing agent of its obligations with respect to any Leasing Commissions, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Leasing Reserve Account shall be returned to Borrower or the Person shown on Lender's records as being the owner of the Property and no other party shall have any right or claim thereto.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this AgreementSection 9.5, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements Replacements, or (including ii) the Leasing Reserve Account to the extent necessary to reimburse Borrower for the actual costs of Tenant Improvements and/or Leasing Commissions incurred in both cases, without limitation, any project management fees, construction management feesconnection with Leases entered into in accordance with the Loan Documents provided that (A) such Leasing Commissions are reasonable and customary for properties similar to the Property and the portion of the Property leased for which such Leasing Commissions are due, and other similar fees(B) the amount of such Leasing Commissions are determined pursuant to arm's-length transactions between Borrower and any leasing agent to which a Leasing Commission is due, whether owed to and excluding any Manager Leasing Commissions which shall be due any member, general partner or otherwise)shareholder of Borrower or any affiliate of Borrower. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (zy) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required RepairTenant Improvements and Leasing Commissions.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each Each request for disbursement in excess of $250,000 25,000 from any of the Reserve Accounts shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, and (iii) include, if such request for disbursement is in connection with Tenant Improvements, a certificate from the Tenant(s) for which the Tenant Improvements have been performed stating that such Tenant Improvements have been completed in a manner satisfactory and acceptable to such Tenant(s) and (unless disbursement is requested by pursuant to Section 9.5(d)), such Tenant(s) has accepted the premises demised under the applicable Lease(s), and containing such other information as Lender may require, in form and substance reasonably satisfactory to Lender, conditional lien waivers and/or if such request for disbursement is in connection with Leasing Commissions, a certificate from the leasing agent that no further sums are due to it in connection with the applicable Lease. With each contractorrequest Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and, supplier, materialman, mechanic or subcontractor with respect to the completion of its work each request less than or delivery of its materialsequal to $25,000, that all such Required Work has been completed lien free and paid for in full. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Replacement or ReplacementTenant Improvement (or the portion thereof completed in accordance with Section 9.5(d)), or the full performance by the leasing agent of its obligations (in the case of Leasing Commissions), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Borrower shall pay all invoices in connection with the Required Work with respect to which a disbursement is requested prior to submitting such request for disbursement from the Reserve Accounts or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender's disbursement of the Reserve Funds. In addition, as a condition to any disbursement in excess of $50,000, Lender may require Borrower to obtain conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials. Any conditional lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request). In the case of Leasing Commissions, payment shall be made to any leasing agent to which a Leasing Commission is due in the amount of invoices submitted by such leasing agent, provided all of the other conditions for disbursements for such Leasing Commissions are satisfied in the judgment of Lender.
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual Propertythe Property or are appropriately stored off-site, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s 's judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work or Leasing Commission for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 1 contract
Samples: Loan Agreement (Ashworth Inc)
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Leasing Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) Tenant Improvements and/or Leasing Commissions incurred in connection with Leases entered into in accordance with the Loan Documents, or, with respect to $101,831.00 of the original estimated cost of deposit made on the date hereof, those Leases entered into with the TI/LC Tenants, provided that (A) such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower Leasing Commissions are reasonable and customary for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Reserve Account properties similar to the extent necessary to pay Property and the portion of the Property leased for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management feeswhich such Leasing Commissions are due, and other similar fees, whether owed to any Manager or otherwise). Notwithstanding the preceding sentence, in no event shall Lender be required to (xB) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after such Leasing Commissions are determined pursuant to arm’s-length transactions between Borrower and any leasing agent to which a Leasing Commission is due.
(b) Each request for disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual Property or for costs which are to be reimbursed from funds held in the Required Repair.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, made and (iii) include, if such request for disbursement is in connection with Tenant Improvements, a certificate from the Tenant(s) for which the Tenant Improvements have been performed stating that such Tenant Improvements have been completed in a manner satisfactory and acceptable to such Tenant(s) and (unless disbursement is requested by pursuant to Section 9.5(d)), such Tenant(s) has accepted the premises demised under the applicable Lease(s), and containing such other information as Lender may require, in form and substance reasonably satisfactory to Lender, conditional lien waivers and/or if such request for disbursement is in connection with Leasing Commissions, a certificate from the leasing agent that no further sums are due to it in connection with the applicable Lease. With each contractor, supplier, materialman, mechanic request Borrower shall certify that all Required Work has been or subcontractor will be performed in accordance with respect to the completion of its work or delivery of its materialsall Legal Requirements. With each request Borrower shall certify that all Required Work has been performed in accordance with all Legal Requirements. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Repair, Replacement or ReplacementTenant Improvement (or the portion thereof completed in accordance with Section 9.5(d)), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Borrower shall use each disbursement to pay all invoices in connection with the Required Work with respect to which such disbursement is requested or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. Lender may require in its sole discretion a conditional waiver of lien (conditioned only on payment) from each Person receiving payment prior to Lender’s disbursement of the Reserve Funds. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $10,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request). In the case of Leasing Commissions, payment shall be made to any leasing agent to which a Leasing Commission is due in the amount of invoices submitted by such leasing agent, provided all of the other conditions for disbursements for such Leasing Commissions are satisfied in the judgment of Lender.
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work or Leasing Commission for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hg) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. In allocating any such excess, Lender may deal with the Person shown on Lender’s records as being the owner of the Property. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(ih) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(ji) Any Reserve Funds attributable Upon the earlier to an Individual Property that has been released from occur of (i) the Lien completion of all Tenant Improvements and the full performance by the leasing agent of its obligations with respect to any Leasing Commissions, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Mortgages Debt, all amounts remaining on deposit, if any, in accordance with the terms hereof Leasing Reserve Account shall be disbursed returned to Borrower within thirty (30) days or the Person shown on Lender’s records as being the owner of such releasethe Property and no other party shall have any right or claim thereto.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)) or ), (ii) the FF&E Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements or (including in both casesiii) the Environmental Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any Mitigation Work, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager Further Investigations or otherwise)Mitigation Monitoring. Notwithstanding the preceding sentencesentence or anything contained herein to the contrary, in no event shall Lender be required to (xw) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (yx) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (zy) disburse funds from the FF&E Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual Property or for costs which are to be reimbursed from funds held in the Required Repair.
Repair Account, or (bz) With each request for disbursement, Borrower shall certify disburse any amounts which would cause the amount of funds remaining in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon the Environmental Reserve Account after any disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials. Except as provided in Section 9.7(d), each request for disbursement shall be made only after completion of the Required Repair or Replacement, as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request.
(d) If the cost of any item of Required Work exceeds $250,000, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) the materials for which the request is made are on site at any Individual Property and are properly secured or have been installed in any Individual Property, (B) all other conditions in this Agreement for disbursement have been satisfied, and (C) in the case of a Replacement are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount to be less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five percent (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 1 contract
Release of Reserve Funds. Provided no Event of Default shall exist and remain uncured, Lender shall release Reserve Funds in accordance with the following terms and conditions (the “Reserve Disbursement Conditions”):
(i) Lender shall apply Taxes and Insurance Reserve Funds to payments of Taxes and Insurance Premiums (and Lender may do so according to any xxxx, statement or estimate procured from the appropriate public office or insurer, as applicable, without inquiry into the accuracy of such xxxx, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof);
(ii) Lender shall disburse Deferred Maintenance Reserve Funds for Required Repairs, Replacement Reserve Funds for Capital Expenditures performed during the term of the Loan in accordance with the capital expenditures budget prepared by Borrower, and during a Cash Management Period, the Approved Capital Expenditures Budget, and (iii) Environmental Remediation Reserve Funds for Environmental Remediation Reserve Work, in each case, not more than once monthly with respect to each type of Reserve Fund, and in amounts not less than $25,000.00, or, if less, the remaining balance of the applicable Reserve Funds, upon satisfaction by Borrower of each of the following conditions: (a) Upon written Borrower shall submit a request from for payment to Lender at least five (5) Business Days prior to the date on which Borrower requests such payment be made and satisfaction specify the purpose of the requirements set forth disbursement, (b) in this Agreementthe case of disbursements on account of Required Repairs, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for Capital Expenditures, or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Environmental Remediation Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise). Notwithstanding the preceding sentence, in no event shall Lender be required to Work: (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement Lender shall have received a certificate from Borrower (other than with respect to the final disbursement1) stating that all work to be less funded by the requested disbursement has been completed in a good and workmanlike manner and in accordance with all applicable Legal Requirements, such certificate to be accompanied by a copy of any license, permit or other approval by any Governmental Authority required in connection therewith, (2) identifying each Person that supplied materials or labor in connection with the requested disbursement, and (3) stating that each such Person has been paid in full or will be paid in full upon such disbursement, such certificate to be accompanied by lien waivers or other evidence of payment reasonably satisfactory to Lender, (y) at Lender’s option for requests for disbursements for amounts greater than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs $250,000, Borrower shall obtain a title or lien search for the applicable Individual PropertyProperty indicating that such Individual Property is free from all liens, (y) disburse funds from any of claims and other encumbrances not previously approved by Lender or otherwise permitted by the Reserve Accounts if an Event of Default existsLoan Documents, or and (z) disburse funds from Lender shall have received such other evidence (including, but not limited to, architectural, engineering or environmental reports) as Lender shall reasonably request that the FF&E Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual Property or for costs which are work to be reimbursed from funds held in funded by the Required Repair.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work requested disbursement has been performed completed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and is paid for in full or will be paid for in full upon such disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials. Except as provided in Section 9.7(d), each request for disbursement shall be made only after completion of the Required Repair or Replacement, as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performanceBorrower.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request.
(d) If the cost of any item of Required Work exceeds $250,000, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) the materials for which the request is made are on site at any Individual Property and are properly secured or have been installed in any Individual Property, (B) all other conditions in this Agreement for disbursement have been satisfied, and (C) in the case of a Replacement are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (zy) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual Property or for costs which are to be reimbursed from funds held in the Required RepairProperty.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 25,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, and (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Replacement (or Replacementthe portion thereof completed in accordance with Section 9.5(d)), or the full performance by the leasing agent of its obligations (in the case of Leasing Commissions), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request.
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s reasonable judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) Intentionally Omitted.
(g) In the event Borrower requests a disbursement from the Required Repair Replacement Reserve Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs Replacements specified on Schedule 9.1, or for a Required Repair to in the extent Property Condition Report prepared in connection with the cost of such Required Repair exceeds one hundred twenty-five (125%) closing of the estimated cost of such Required Repair as set forth on Schedule 9.1 Loan (in either case, an “Additional Required RepairReplacement”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Replacement Reserve Account should be used to pay for such Additional Required RepairReplacement. If Lender reasonably determines that (i) such Additional Required Repair Replacement is of the type intended to be covered by the Required Repair Replacement Reserve Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair Replacement are reasonable, (iviii) the funds in the Required Repair Replacement Reserve Account are sufficient to pay for such Additional Required Repair Replacement and all other Required Repairs Replacements for the applicable Individual Property specified on Schedule 9.1in the Property Condition Report, and (viv) all other conditions for disbursement under this Agreement have been met, Lender may shall disburse funds from the Required Repair Replacement Reserve Account.
(gh) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hi) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(ij) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) % of the original estimated cost of such Required Repair as set forth on Schedule 9.1I, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f9.5(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) % of the then current estimated cost of completing all remaining Required Repairs for the applicable related Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any the related Individual Property or for costs which are to be reimbursed from funds held in the Required RepairRepair Account.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each Each request for disbursement in excess from any of $250,000 the Reserve Accounts shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from . With each contractor, supplier, materialman, mechanic or subcontractor request Borrower shall certify that all Required Work has been performed in accordance with respect to the completion of its work or delivery of its materialsall Legal Requirements. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Repair, Replacement (or Replacement, as applicablethe portion thereof completed in accordance with Section 9.5(d)), for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Borrower shall pay all invoices in connection with the Required Work with respect to which a disbursement is requested prior to submitting such request for disbursement from the Reserve Accounts or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender’s disbursement of the Reserve Funds. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $10,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any the related Individual Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request).
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any an Individual Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1I, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) % of the estimated cost of such Required Repair as set forth on Schedule 9.1 I (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Replacement Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable related Individual Property specified on Schedule 9.1I, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) In the event Borrower requests a disbursement from the Replacement Reserve Account to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Replacements specified in the related Physical Conditions Report prepared in connection with the closing of the Loan (an “Additional Replacement”), Borrower shall disclose in writing to Lender the reason why funds in the Replacement Reserve Account should be used to pay for such Additional Replacement. If Lender determines that (i) such Additional Replacement is of the type intended to be covered by the Replacement Reserve Account, (ii) such Additional Replacement is not covered or is not of the type intended to be covered by the Required Repair Account, (iii) costs for such Additional Replacement are reasonable, (iv) the funds in the Replacement Reserve Account are sufficient to pay for such Additional Replacement and all other Replacements for the Property specified in the Physical Conditions Report, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Replacement Reserve Account.
(h) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hi) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. In allocating any such excess, Lender may deal with the Person shown on Lender’s records as being the owner of the related Individual Property. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to the related Borrower requesting payment thereof.
(ij) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(jk) Any Reserve Funds attributable Upon the earlier to an Individual Property that has been released from occur of (i) the Lien timely completion of the Mortgages all Required Repairs and any Additional Required Repairs, if any, in accordance with the terms hereof requirements of this Agreement, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Required Repair Account shall be disbursed returned to Borrower within thirty or the Person shown on Lender’s records as being the owner of the related Individual Property and no other party shall have any right or claim thereto.
(30l) days Upon payment in full of such releasethe Debt, all amounts remaining on deposit, if any, in the Replacement Reserve Account shall be returned to Borrower or the Person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this AgreementSection 9.6, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or to reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) % of the original estimated cost of such Required Repair as set forth on Schedule 9.1I, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)9.6) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) % of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required RepairRepair Account.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 25,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials. Except as provided in Section 9.7(d)9.6, each request for disbursement shall be made only after completion of the Required Repair Repair, Replacement (or Replacementthe portion thereof completed in accordance with Section 9.6), or the full performance by the leasing agent of its obligations (in the case of Leasing Commissions), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request.
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requestedWork.
(f) In the event any Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1I, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) % of the estimated cost of such Required Repair as set forth on Schedule 9.1 I (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Replacement Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1I, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) In the event any Borrower requests a disbursement from the Replacement Reserve Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Replacements specified in the Property Condition Report prepared in connection with the closing of the Loan (an “Additional Replacement”), Borrower shall disclose in writing to Lender the reason why funds in the Replacement Reserve Account should be used to pay for such Additional Replacement. If Lender determines that (i) such Additional Replacement is of the type intended to be covered by the Replacement Reserve Account, (ii) such Additional Replacement is not covered or is not of the type intended to be covered by the Required Repair Account, (iii) costs for such Additional Replacement are reasonable, (iv) the funds in the Replacement Reserve Account are sufficient to pay for such Additional Replacement and all other Replacements for the Property specified in the Property Condition Report, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Replacement Reserve Account.
(h) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hi) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(ij) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(jk) Any Reserve Funds attributable Upon the earlier to an Individual Property that has been released from occur of (i) the Lien timely completion of the Mortgages all Required Repairs and any Additional Required Repairs, if any, in accordance with the terms hereof requirements of this Agreement, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Required Repair Account shall be disbursed returned to Borrower within thirty or the Person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto.
(30l) days Upon payment in full of such releasethe Debt, all amounts remaining on deposit, if any, in the Replacement Reserve Account shall be returned to Borrower or the Person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto.
Appears in 1 contract
Samples: Loan Agreement (Acadia Realty Trust)
Release of Reserve Funds. (a) Upon With respect to a Property upon written request from Borrower and in all instances satisfaction of the requirements set forth in this Agreement, Lender shall promptly disburse to Borrower within thirty (30) days amounts from (i) the applicable Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) % of the original estimated cost of such Required Repair as set forth on Schedule 9.1I, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f9.5(f)) or ), (ii) the FF&E applicable Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements or (including iii) the PIP Reserve Account to the extent necessary to reimburse Borrower for the actual costs of any Required PIP Replacements to the extent funds in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)the applicable Replacement Reserve Account are insufficient for such Required PIP Replacements. Notwithstanding the preceding sentence, with respect to any Property, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the applicable Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) % of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual such Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from any Replacement Reserve Account or the FF&E PIP Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to such Property (other than FF&E Replacements required pursuant to any Individual Property PIP Report) or for costs which are to be reimbursed from funds held in the Required Repair.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials. Except as provided in Section 9.7(d), each request for disbursement shall be made only after completion of the Required Repair or Replacement, as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request.
(d) If the cost of any item of Required Work exceeds $250,000, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) the materials for which the request is made are on site at any Individual Property and are properly secured or have been installed in any Individual Property, (B) all other conditions in this Agreement for disbursement have been satisfied, and (C) in the case of a Replacement are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the related Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E PIP Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 1 contract
Samples: Loan Agreement (RFS Partnership Lp)
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) % of the original estimated cost of such Required Repair as set forth on Schedule 9.1I, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f9.5(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) % of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required RepairRepair Account.
(ba) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each Each request for disbursement in excess from any of $250,000 the Reserve Accounts shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from . With each contractor, supplier, materialman, mechanic or subcontractor request Borrower shall certify that all Required Work has been performed in accordance with respect to the completion of its work or delivery of its materialsall Legal Requirements. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair or ReplacementReplacement (or the portion thereof completed in accordance with Section 9.5(d)), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(cb) Borrower shall pay all invoices in connection with the Required Work with respect to which a disbursement is requested prior to submitting such request for disbursement from the Reserve Accounts or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender’s disbursement of the Reserve Funds. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $10,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request).
(dc) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(ed) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(fe) In the event any Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1I, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) % of the estimated cost of such Required Repair as set forth on Schedule 9.1 I (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Replacement Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1I, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(f) In the event any Borrower requests a disbursement from the Replacement Reserve Account to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Replacements specified in the Physical Conditions Report prepared in connection with the closing of the Loan (an “Additional Replacement”), Borrower shall disclose in writing to Lender the reason why funds in the Replacement Reserve Account should be used to pay for such Additional Replacement. If Lender determines that (i) such Additional Replacement is of the type intended to be covered by the Replacement Reserve Account, (ii) such Additional Replacement is not covered or is not of the type intended to be covered by the Required Repair Account, (iii) costs for such Additional Replacement are reasonable, (iv) the funds in the Replacement Reserve Account are sufficient to pay for such Additional Replacement and all other Replacements for the Property specified in the Physical Conditions Report, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Replacement Reserve Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. In allocating any such excess, Lender may deal with the Person shown on Lender’s records as being the owner of the Property. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable Upon the earlier to an Individual Property that has been released from occur of (i) the Lien timely completion of the Mortgages all Required Repairs and any Additional Required Repairs, if any, in accordance with the terms hereof requirements of this Agreement, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Required Repair Account shall be disbursed returned to Borrower within thirty or the Person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto.
(30k) days Upon payment in full of such releasethe Debt, all amounts remaining on deposit, if any, in the Replacement Reserve Account shall be returned to Borrower or the Person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in Section 9.4 and 9.5 of this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five ten percent (125110%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1I, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f9.5(f)) or ), (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements Replacements, or (including iii) the Room Split Reserve Account to the extent necessary to pay for the actual costs of Room Split Work or to reimburse Borrower therefor, upon completion of such Room Split Work or the applicable portion thereof as set forth in both casesthe Room Split Budget (but subject to Non-Discretionary Expenses, without limitation, any project management fees, construction management fees, Permitted Variances and other similar fees, whether owed to any Manager or otherwisevariances approved by Lender in writing). Notwithstanding the preceding sentence, in no event shall Lender be required to (xw) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five ten percent (125110%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (yx) disburse funds from any of the Reserve Accounts if an Event of Default existshas occurred and is continuing, or (zy) disburse funds from the FF&E Replacement Reserve Account to pay for or reimburse Borrower for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be paid for or reimbursed from funds held in the Required RepairRepair Account.
(b) With each request for disbursementdisbursement (regardless of amount), Borrower shall certify in writing to Lender that that, to Borrower’s knowledge, all Required Work has been performed in accordance with all Legal Requirements in all material respects and that all such Required Work has been completed lien free and paid for in full or will be paid for in full (subject to any retainer contained in a contract relating to such Required Work) upon disbursement of the requested fundsfunds and shall be accompanied by lien waivers (which may be conditional) from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials. In addition, each request for disbursement in excess of $250,000 500,000 shall be on a form provided or reasonably approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair or ReplacementReplacement (or the portion thereof completed in accordance with Section 9.5(d)), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request.
(d) If the cost of any item of Required Work exceeds $250,000, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) the materials for which the request is made are on site at any Individual Property and are properly secured or have been installed in any Individual Property, (B) all other conditions in this Agreement for disbursement have been satisfied, and (C) in the case of a Replacement are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 1 contract
Release of Reserve Funds. (a) Upon Within ten (10) days following written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for for, or disburse an amount to Borrower equal to, the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) % of the original estimated cost of such Required Repair as set forth on Schedule 9.1I, unless Lender has agreed to reimburse Borrower for for, or disburse an amount to Borrower equal to, such excess cost pursuant to Section 9.7(f9.05(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for for, or disburse an amount to Borrower equal to, the actual costs of any approved Replacements Replacements, or (including iii) the Leasing Reserve Account to the extent necessary to reimburse Borrower for, or disburse an amount to Borrower equal to, the actual costs of Tenant Improvements and/or Leasing Commissions incurred in both casesconnection with Leases entered into in accordance with the Loan Documents, without limitation, any project management fees, construction management feesprovided that (A) such Leasing Commissions are reasonable and customary for properties similar to the Property and the portion of the Property leased for which such Leasing Commissions are due, and (B) the amount of such Leasing Commissions are determined pursuant to arm’s-length transactions between Borrower and any leasing agent to which a Leasing Commission is due, and excluding any Leasing Commissions which shall be due any member, general partner or shareholder of Borrower or any Affiliate of Borrower (other similar feesthan Leasing Commissions payable to Market Center Management Company, whether owed to any Manager or otherwiseLtd., a Texas limited partnership). Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) % of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default existshas occurred and is continuing, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required RepairRepair Account or for Tenant Improvements and Leasing Commissions.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each Each request for disbursement in excess from any of $250,000 the Reserve Accounts shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, and (iii) include, if such request for disbursement is in connection with Tenant Improvements, a certificate from the Tenant(s) for which the Tenant Improvements have been performed stating that such Tenant Improvements have been completed (except for minor punchlist items) in a manner satisfactory and acceptable to such Tenant(s) and (unless disbursement is requested by pursuant to Section 9.05(d)), such Tenant(s) have accepted the premises demised under their applicable Lease(s), and containing such other information as Lender may require, in form and substance reasonably satisfactory to Lender, conditional lien waivers and/or if such request for disbursement is in connection with Leasing Commissions, a certificate from each contractorthe leasing agent that no further sums are due to it in connection with the applicable Lease; provided, supplierhowever, materialmanfor disbursements made in connection with Leasing Commissions, mechanic or subcontractor with respect so long as the market conditions in Dallas, Texas, are such that Leasing Commissions are to be paid in an amount equal to one-half (1/2) of such Leasing Commissions when the completion Tenant signs the Lease, and the other one-half (1/2) of such Leasing Commissions when the Tenant takes physical occupancy of its work or delivery space at the Property, then Borrower shall be entitled to receive disbursements in the amount equal to one-half (1/2) of the amount of such Leasing Commissions due (1) at such time as a Lease for space at the Property is fully executed, and (2) at such time as the Tenant under such Lease takes physical occupancy of its materialsdemised premises at the Property. With each request Borrower shall certify that all Required Work has been performed in accordance with all Legal Requirements. Except as provided in Section 9.7(d9.05(d), each request for disbursement shall be made only after completion of the Required Repair Repair, Replacement or ReplacementTenant Improvement (except for minor punchlist items) (or the portion thereof completed in accordance with Section 9.05(d)), or the full performance by the leasing agent of its obligations (in the case of Leasing Commissions), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Borrower shall pay all invoices in connection with the Required Work with respect to which a disbursement is requested prior to submitting such request for disbursement from the Reserve Accounts or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. Lender shall pay each such reimbursement pursuant to this Section 9.05 within ten (10) Business Days after Borrower has submitted such request to Lender and Lender has received all other information and documentation as required by this Section 9.05. In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender’s disbursement of the Reserve Funds. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $50,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual Property the Required Work for which Borrower is seeking reimbursement by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request). In the case of Leasing Commissions, payment shall be made to any leasing agent to which a Leasing Commission is due in the amount of invoices submitted by such leasing agent, provided all of the other conditions for disbursements for such Leasing Commissions are satisfied in the judgment of Lender.
(d) If (i) the cost of any item of contractor performing such Required Work exceeds $250,000requires periodic payments pursuant to terms of a written contract, and (ii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 50,000 or (ii) the total cost of the Required Work or the portion of the Leasing Commission then due and payable for which the disbursement is requested.
(f) In the event any Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1I, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) % of the estimated cost of such Required Repair as set forth on Schedule 9.1 I (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Replacement Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1I, and (v) all other conditions for disbursement under this Agreement have been met, Lender may shall disburse funds from the Required Repair AccountAccount within ten (10) days thereof.
(g) In the event any Borrower requests a disbursement from the Replacement Reserve Account to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Replacements specified in the Physical Conditions Report prepared in connection with the closing of the Loan (an “Additional Replacement”), Borrower shall disclose in writing to Lender the reason why funds in the Replacement Reserve Account should be used to pay for such Additional Replacement. If Lender determines that (i) such Additional Replacement is of the type intended to be covered by the Replacement Reserve Account, (ii) such Additional Replacement is not covered or is not of the type intended to be covered by the Required Repair Account, (iii) costs for such Additional Replacement are reasonable, (iv) the funds in the Replacement Reserve Account are sufficient to pay for such Additional Replacement and all other Replacements for the Property specified in the Physical Conditions Report, and (v) all other conditions for disbursement under this Agreement have been met, Lender shall disburse funds from the Replacement Reserve Account within ten (10) days thereof.
(h) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hi) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. In allocating any such excess, Lender may deal with the Person shown on Lender’s records as being the owner of the Property. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after written notice from Lender to Borrower requesting payment thereof.
(ij) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(jk) Any Reserve Funds attributable Upon the earlier to an Individual Property that has been released from occur of (i) the Lien timely completion of the Mortgages all Required Repairs and any Additional Required Repairs, if any, in accordance with the terms hereof requirements of this Agreement, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Required Repair Account shall be disbursed returned to Borrower within thirty or the Person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto.
(30l) days Upon payment in full of such releasethe Debt, all amounts remaining on deposit, if any, in the Replacement Reserve Account shall be returned to Borrower or the Person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto.
(m) Upon the earlier to occur of (i) the completion of all Tenant Improvements and the full performance by the leasing agent of its obligations with respect to any Leasing Commissions, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Leasing Reserve Account shall be returned to Borrower or the Person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Section 8.5
(a) Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or to reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) % of the original estimated cost of such Required Repair as set forth on Schedule 9.1Exhibit C, unless Lender has otherwise agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)by Lender) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) % of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default existshas occurred and is continuing, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required RepairRepair Account.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) for requests for disbursement in excess of $25,000, if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials. Except as provided in Section 9.7(d8.5(d), each request for disbursement shall be made only after completion of the Required Repair or ReplacementReplacement (or the portion thereof completed in accordance with Section 8.5(d)), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request.
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s 's judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(jg) Any Reserve Funds attributable to an Individual Property that has been released from Upon the Lien timely completion of the Mortgages all Required Repairs in accordance with the terms hereof requirements of this Agreement, as verified by Lender in its reasonable discretion, all amounts remaining on deposit, if any, in the Required Repair Account shall be disbursed returned to Borrower within thirty and no other party shall have any right or claim thereto.
(30h) days Upon payment in full of such releasethe Debt, or upon a release of the lien of the Security Instrument in connection with a Defeasance Event, all amounts remaining on deposit, if any, in the Reserve Accounts shall be returned to Borrower as being the owner of the Property and no other party shall have any right or claim thereto.
Appears in 1 contract
Samples: Loan Agreement (Acadia Realty Trust)
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (yi) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (zii) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual Property or for costs which are to be reimbursed from funds held in the Required RepairProperty.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be completed lien free and paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 25,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials, to the extent the cost of such work exceeds $50,000.00. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Replacement (or Replacement, as applicable, the portion thereof completed in accordance with Section 9.5(d)) for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request.
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments (provided, Lender shall not be entitled to approve the contract if Lender has already approved such contract pursuant to the provisions of Section 9.4(a)), a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 1 contract
Samples: Loan Agreement (Sun Communities Inc)
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements or (including in both casesii) the Leasing Reserve Account to the extent necessary to reimburse Borrower for the actual costs of Tenant Improvements and/or Leasing Commissions incurred, without limitation, any project management fees, construction management feesprovided that (A) such Leasing Commissions are reasonable and customary for properties similar to the Property and the portion of the Property leased for which such Leasing Commissions are due, and other similar fees, whether owed (B) the amount of such Leasing Commissions are determined pursuant to arm's-length transactions between Borrower and any Manager or otherwise)leasing agent to which a Leasing Commission is due. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (zy) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower pay for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required RepairTenant Improvements and Leasing Commissions.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each Each request for disbursement in excess from any of $250,000 the Reserve Accounts shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, made and (iii) include, if such request for disbursement is in connection with Tenant Improvements, a certificate from the Tenant(s) for which the Tenant Improvements have been performed stating that such Tenant Improvements have been completed in a manner satisfactory and acceptable to such Tenant(s) and (unless disbursement is requested by pursuant to Section 9.5(d)), such Tenant(s) has accepted the premises demised under the applicable Lease(s), and containing such other information as Lender may require, in form and substance reasonably satisfactory to Lender, conditional lien waivers and/or if such request for disbursement is in connection with Leasing Commissions, a certificate from the leasing agent that no further sums are due to it in connection with the applicable Lease. With each contractor, supplier, materialman, mechanic request Borrower shall certify that all Required Work has been or subcontractor will be performed in accordance with respect to the completion of its work or delivery of its materialsall Legal Requirements. With each request Borrower shall certify that all Required Work has been performed in accordance with all Legal Requirements. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Replacement or ReplacementTenant Improvement (or the portion thereof completed in accordance with Section 9.5(d)), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Borrower shall use each disbursement to pay all invoices in connection with the Required Work with respect to which such disbursement is requested or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. Lender may require in its sole discretion a conditional waiver of lien (conditioned only on payment) from each Person receiving payment prior to Lender's disbursement of the Reserve Funds. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $10,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request). In the case of Leasing Commissions, payment shall be made to any leasing agent to which a Leasing Commission is due in the amount of invoices submitted by such leasing agent, provided all of the other conditions for disbursements for such Leasing Commissions are satisfied in the judgment of Lender.
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s 's judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work or Leasing Commission for which the disbursement is requested.
(f) [Intentionally omitted].
(g) In the event Borrower requests a disbursement from the Required Repair Replacement Reserve Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs Replacements specified on Schedule 9.1, or for a Required Repair to in the extent Physical Conditions Report prepared in connection with the cost of such Required Repair exceeds one hundred twenty-five (125%) closing of the estimated cost of such Required Repair as set forth on Schedule 9.1 Loan (in either case, an “Additional Required Repair”"ADDITIONAL REPLACEMENT"), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Replacement Reserve Account should be used to pay for such Additional Required RepairReplacement. If Lender determines in its reasonable discretion that (i) such Additional Required Repair Replacement is of the type intended to be covered by the Required Repair Replacement Reserve Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account[intentionally omitted], (iii) costs for such Additional Required Repair Replacement are reasonable, (iv) the funds in the Required Repair Replacement Reserve Account are sufficient to pay for such Additional Required Repair Replacement and all other Required Repairs Replacements for the applicable Individual Property specified on Schedule 9.1in the Physical Conditions Report, and (v) all other conditions for disbursement under this Agreement have been met, Lender may shall disburse funds from the Required Repair Replacement Reserve Account.
(gh) Lender’s 's disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hi) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. In allocating any such excess, Lender may deal with the Person shown on Lender's records as being the owner of the Property. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(ij) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(jk) Any Reserve Funds attributable to an Individual Property that has been released from the Lien Upon payment in full of the Mortgages Debt, all amounts remaining on deposit, if any, in accordance with the terms hereof Replacement Reserve Account shall be disbursed returned to Borrower within thirty or the Person shown on Lender's records as being the owner of the Property and no other party shall have any right or claim thereto.
(30l) days Upon the earlier to occur of such release(i) the completion of all Tenant Improvements and the full performance by the leasing agent of its obligations with respect to any Leasing Commissions, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Leasing Reserve Account shall be returned to Borrower or the Person shown on Lender's records as being the owner of the Property and no other party shall have any right or claim thereto.
(m) Notwithstanding any other provision hereof to the contrary, Borrower shall not be entitled to the disbursement of more than $6,007,242 with respect to Tenant Improvements and Leasing Commission due with respect to the Latham Lease, and more than $10,219,726 with respect to Tenant Improxxxxxxs and Leasing Commission due with respect to the MoFo Lease.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this AgreementSection 9.5, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or to reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) % of the original estimated cost of such Required Repair as set forth on Schedule 9.1I, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)9.5(f) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) % of the then current estimated cost of completing all remaining Required Repairs for the applicable related Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any the related Individual Property or for costs which are to be reimbursed from funds held in the Required RepairRepair Account.
(b) With each request for disbursementdisbursement in connection with Required Work, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 25,000 shall be on a reasonable form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialmanmaterial man, mechanic or subcontractor with respect to the completion of its work or delivery of its materials. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair or ReplacementReplacement (or the portion thereof completed in accordance with Section 9.5(d)), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any the related Individual Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request.
(d) If (i) the cost of any item of Required Work exceeds $250,00075,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any the related Individual Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event any Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1I, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) % of the estimated cost of such Required Repair as set forth on Schedule 9.1 I (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender reasonably determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Replacement Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1I, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) In the event any Borrower requests a disbursement from the Replacement Reserve Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Replacements specified in the Property Condition Report prepared in connection with the closing of the Loan (an “Additional Replacement”), Borrower shall disclose in writing to Lender the reason why funds in the Replacement Reserve Account should be used to pay for such Additional Replacement. If Lender reasonably determines that (i) such Additional Replacement is of the type intended to be covered by the Replacement Reserve Account, (ii) such Additional Replacement is not covered or is not of the type intended to be covered by the Required Repair Account, (iii) costs for such Additional Replacement are reasonable, (iv) the funds in the Replacement Reserve Account are sufficient to pay for such Additional Replacement and all other Replacements for the Property specified in the Property Condition Report, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Replacement Reserve Account.
(h) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner reasonably satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hi) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(ij) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(jk) Any Reserve Funds attributable Upon the earlier to an Individual Property that has been released from occur of (i) the Lien timely completion of the Mortgages all Required Repairs and any Additional Required Repairs, if any, in accordance with the terms hereof requirements of this Agreement, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Required Repair Account shall be disbursed returned to Borrower within thirty or the Person shown on Lender’s records as being the owner of the related Individual Property and no other party shall have any right or claim thereto.
(30l) days Upon payment in full of such releasethe Debt, all amounts remaining on deposit, if any, in the Replacement Reserve Account shall be returned to Borrower or the Person shown on Lender’s records as being the owner of the related Individual Property and no other party shall have any right or claim thereto.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this AgreementSection 9.5, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements Replacements, or (including ii) the Leasing Reserve Account to the extent necessary to reimburse Borrower for the actual costs of Tenant Improvements and/or Leasing Commissions incurred in both casesconnection with Leases entered into in accordance with the Loan Documents or those Leases entered into with FFIC, without limitation, any project management fees, construction management feesprovided that (A) such Leasing Commissions are reasonable and customary for properties similar to the Property and the portion of the Property leased for which such Leasing Commissions are due, and other similar fees(B) the amount of such Leasing Commissions are determined pursuant to arm’s- length transactions between Borrower and any leasing agent to which a Leasing Commission is due, whether owed to and excluding any Manager Leasing Commissions which shall be due any member, general partner or otherwise)shareholder of Borrower or any affiliate of Borrower. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (zy) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required Repairfor Tenant Improvements and Leasing Commissions.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 50,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials, and (iv) include, if such request for disbursement is in connection with Tenant Improvements, a certificate from the Tenant(s) for which the Tenant Improvements have been performed stating that such Tenant Improvements have been completed in a manner satisfactory and acceptable to such Tenant(s) and (unless disbursement is requested pursuant to Section 9.5(d)), such Tenant(s) has accepted the premises demised under the applicable Lease(s), and containing such other information as Lender may require, in form and substance reasonably satisfactory to Lender, and/or if such request for disbursement is in connection with Leasing Commissions, a certificate from the leasing agent that no further sums are due to it in connection with the applicable Lease]. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Replacement or ReplacementTenant Improvement (or the portion thereof completed in accordance with Section 9.5(d)), or the full performance by the leasing agent of its obligations (in the case of Leasing Commissions), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request. In the case of Leasing Commissions, payment shall be made to any leasing agent to which a Leasing Commission is due in the amount of invoices submitted by such leasing agent, provided all of the other conditions for disbursements for such Leasing Commissions are satisfied in the judgment of Lender.
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work or Leasing Commission for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Leasing Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) Tenant Improvements and/or Leasing Commissions incurred in connection with Leases entered into in accordance with the Loan Documents, or, with respect to $32,819.00 of the original estimated cost of deposit made on the date hereof, those Leases entered into with the TI/LC Tenants, provided that (A) such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower Leasing Commissions are reasonable and customary for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Reserve Account properties similar to the extent necessary to pay Property and the portion of the Property leased for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management feeswhich such Leasing Commissions are due, and other similar fees, whether owed to any Manager or otherwise). Notwithstanding the preceding sentence, in no event shall Lender be required to (xB) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after such Leasing Commissions are determined pursuant to arm’s-length transactions between Borrower and any leasing agent to which a Leasing Commission is due.
(b) Each request for disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual Property or for costs which are to be reimbursed from funds held in the Required Repair.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, made and (iii) include, if such request for disbursement is in connection with Tenant Improvements, a certificate from the Tenant(s) for which the Tenant Improvements have been performed stating that such Tenant Improvements have been completed in a manner satisfactory and acceptable to such Tenant(s) and (unless disbursement is requested by pursuant to Section 9.5(d)), such Tenant(s) has accepted the premises demised under the applicable Lease(s), and containing such other information as Lender may require, in form and substance reasonably satisfactory to Lender, conditional lien waivers and/or if such request for disbursement is in connection with Leasing Commissions, a certificate from the leasing agent that no further sums are due to it in connection with the applicable Lease. With each contractor, supplier, materialman, mechanic request Borrower shall certify that all Required Work has been or subcontractor will be performed in accordance with respect to the completion of its work or delivery of its materialsall Legal Requirements. With each request Borrower shall certify that all Required Work has been performed in accordance with all Legal Requirements. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Repair, Replacement or ReplacementTenant Improvement (or the portion thereof completed in accordance with Section 9.5(d)), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Borrower shall use each disbursement to pay all invoices in connection with the Required Work with respect to which such disbursement is requested or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. Lender may require in its sole discretion a conditional waiver of lien (conditioned only on payment) from each Person receiving payment prior to Lender’s disbursement of the Reserve Funds. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $10,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request). In the case of Leasing Commissions, payment shall be made to any leasing agent to which a Leasing Commission is due in the amount of invoices submitted by such leasing agent, provided all of the other conditions for disbursements for such Leasing Commissions are satisfied in the judgment of Lender.
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work or Leasing Commission for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hg) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. In allocating any such excess, Lender may deal with the Person shown on Lender’s records as being the owner of the Property. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(ih) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(ji) Any Reserve Funds attributable Upon the earlier to an Individual Property that has been released from occur of (i) the Lien completion of all Tenant Improvements and the full performance by the leasing agent of its obligations with respect to any Leasing Commissions, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Mortgages Debt, all amounts remaining on deposit, if any, in accordance with the terms hereof Leasing Reserve Account shall be disbursed returned to Borrower within thirty (30) days or the Person shown on Lender’s records as being the owner of such releasethe Property and no other party shall have any right or claim thereto.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower (or, with respect to disbursements from the Required Repair Account or FF&E Reserve Account, if Guarantor pays for any Required Repairs or FF&E expenditures, including during a Cash Sweep Period, to Guarantor) within thirty ten (3010) days amounts from (i) the Required Repair Account or FF&E Reserve Account, as applicable, to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair or Guarantor, as set forth on Schedule 9.1applicable, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, design and architectural fees, procurement fees and other similar fees, whether owed to any Manager or otherwise). Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Reserve Account to reimburse Borrower or Guarantor, as applicable, for the costs of routine repairs or maintenance to any Individual Property or for costs which are to be reimbursed from funds held in the Required RepairRepair Account.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials. Except as provided in Section 9.7(d), each request for disbursement shall be made only after completion of the Required Repair or Replacement, as applicable, Replacement for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request.
(d) If the cost of any item of Required Work exceeds $250,000, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) the materials for which the request is made are on site at any Individual Property and are properly secured or have been installed in any Individual Property, (B) all other conditions in this Agreement for disbursement have been satisfied, and (C) in the case of a Replacement are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each any Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.19.1(i) or (ii), or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five percent (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 9.1(i) or (ii) (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Replacement Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property Properties specified on Schedule 9.19.1(i) or (ii), and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) LenderLxxxxx’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Construction Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each the applicable Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)) or Construction and (ii) the FF&E Leasing Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements Tenant Improvements and/or Leasing Commissions incurred in connection with a replacement Lease, provided, (including A) such replacement Lease was entered into in both casesaccordance with the terms of the Loan Documents, without limitation(B) such replacement Lease covers all of the applicable Vacated Anchor Space, any project management fees, construction management fees(C) such Leasing Commissions are reasonable and customary for properties similar to the Property and the portion of the Property leased for which such Leasing Commissions are due, and other similar fees(D) the amount of such Leasing Commissions are determined pursuant to arm's-length transactions between Borrower and any leasing agent to which a Leasing Commission is due, whether owed to and excluding any Manager Leasing Commissions which shall be due any member, general partner or otherwise)shareholder of Borrower or any affiliate of Borrower. Notwithstanding the preceding sentence, in no event shall Lender be required to disburse funds (xi) disburse from any amounts which of the Reserve Accounts if an Event of Default exists, (ii) that would cause the amount of funds remaining in the Required Repair Construction Account after any such disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all of the remaining Required Repairs Construction or (iii) from the Leasing Reserve Account for any Vacated Anchor Space in excess of the applicable Individual Anchor Tenant Funds. Provided no Event of Default has occurred and is continuing, Lender shall release any remaining applicable Individual Anchor Tenant Funds to Borrower upon receipt of proof of payment in full of all Leasing Commissions and Tenant Improvements relating to the applicable Vacated Anchor Space and receipt by Lender of a written estoppel reasonably acceptable to Lender from the replacement tenant for the applicable Individual PropertyVacated Anchor Space which shall state, among other things, that the Tenant Improvements have been completed in a manner satisfactory to such replacement Tenant and that the replacement Lease is in full force and effect.
(yb) disburse funds Each request for disbursement from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual Property or for costs which are to be reimbursed from funds held in the Required Repair.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from . With each contractor, supplier, materialman, mechanic or subcontractor with respect request Borrower shall certify that to the completion best of its work or delivery of its materialsBorrower's knowledge, all Required Work has been performed in accordance with all Legal Requirements. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after (i) full completion of each item of the Required Repair Work, (ii) full performance by the leasing agent of its obligations (in the case of each Leasing Commission) or Replacement(iii) full payment to a Tenant of any applicable tenant improvement allowance, as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Borrower shall pay all invoices in connection with the Required Work with respect to which a disbursement is requested prior to submitting such request for disbursement from the Reserve Accounts or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender's disbursement of the Reserve Funds. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $15,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request). In the case of Leasing Commissions, payment shall be made to any leasing agent to which a Leasing Commission is due in the amount of invoices submitted by such leasing agent, provided all of the other conditions for disbursements for such Leasing Commissions are satisfied.
(d) If (i) the cost of any item of Required Work exceeds $250,00025,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has reasonably approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made and such funds disbursed after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, and (BC) all other conditions in this Agreement for disbursement have been satisfied, and (C) in the case of a Replacement are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair AccountIntentionally Omitted.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) % of the original estimated cost of such Required Repair as set forth on Schedule 9.1I, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f9.5(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) % of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required RepairRepair Account.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each Each request for disbursement in excess from any of $250,000 the Reserve Accounts shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from . With each contractor, supplier, materialman, mechanic or subcontractor request Borrower shall certify that all Required Work has been performed in accordance with respect to the completion of its work or delivery of its materialsall Legal Requirements. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair or ReplacementReplacement (or the portion thereof completed in accordance with Section 9.5(d)), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Borrower shall pay all invoices in connection with the Required Work with respect to which a disbursement is requested prior to submitting such request for disbursement from the Reserve Accounts or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender's disbursement of the Reserve Funds. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $50,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request).
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments (provided, Lender shall not be entitled to approve the contract if Lender has already approved such contract pursuant to the provisions of Section 9.4(a)), a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, and (BC) all other conditions in this Agreement for disbursement have been satisfied, and (C) in the case of a Replacement are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event any Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1I, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) % of the estimated cost of such Required Repair as set forth on Schedule 9.1 I (in either case, an “Additional Required Repair”"ADDITIONAL REQUIRED REPAIR"), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iviii) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1I, (iv) such Additional Required Repair is not covered or is not of the type intended to be covered by the Replacement Reserve Account, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 1 contract
Samples: Loan Agreement (Sun Communities Inc)
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this AgreementSection 9.5, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) % of the original estimated cost of such Required Repair as set forth on Schedule 9.1I, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f9.5(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) % of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required RepairRepair or for Tenant Improvements and Leasing Commissions.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 25,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, and (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair or ReplacementReplacement (or the portion thereof completed in accordance with Section 9.5(d)), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request.
(d) If (i) the cost of any item of Required Work exceeds $250,000100,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event any Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1I, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) % of the estimated cost of such Required Repair as set forth on Schedule 9.1 I (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Replacement Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1I, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) In the event any Borrower requests a disbursement from the Replacement Reserve Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Replacements specified in the Property Condition Report prepared in connection with the closing of the Loan (an “Additional Replacement”), Borrower shall disclose in writing to Lender the reason why funds in the Replacement Reserve Account should be used to pay for such Additional Replacement. If Lender determines that (i) such Additional Replacement is of the type intended to be covered by the Replacement Reserve Account, (ii) such Additional Replacement is not covered or is not of the type intended to be covered by the Required Repair Account, (iii) costs for such Additional Replacement are reasonable, (iv) the funds in the Replacement Reserve Account are sufficient to pay for such Additional Replacement and all other Replacements for the Property specified in the Property Condition Report, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Replacement Reserve Account.
(h) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hi) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(ij) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(jk) Any Reserve Funds attributable Upon the earlier to an Individual Property that has been released from occur of (i) the Lien timely completion of the Mortgages all Required Repairs and any Additional Required Repairs, if any, in accordance with the terms requirements of this Agreement, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Required Repair Account shall be returned to Borrower or the Person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto.
(l) Upon payment in full of the Debt, all amounts remaining on deposit, if any, in the Replacement Reserve Account and any letters of credit required pursuant to Section 9.2(b) hereof shall be disbursed returned to Borrower within thirty or the Person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto.
(30m) days Upon the earlier to occur of such release(i) the completion of all Tenant Improvements and the full performance by the leasing agent of its obligations with respect to any Leasing Commissions, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Leasing Reserve Account shall be returned to Borrower or the Person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto.
(n) Notwithstanding anything contained herein to the contrary, funds in the Leasing Reserve Account shall be disbursed in accordance with Section 9.3.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) % of the original estimated cost of such Required Repair as set forth on Schedule 9.1I, unless Lender has agreed to pay or reimburse Borrower for such excess cost pursuant to Section 9.7(f9.5(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) 100% of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual PropertyProperties, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Replacement Reserve Account to pay or reimburse Borrower for the costs of routine repairs or maintenance to any Individual Property the Properties or for costs which are to be paid or reimbursed from funds held in the Required RepairRepair Account.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each Each request for disbursement in excess from any of $250,000 the Reserve Accounts shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from . With each contractor, supplier, materialman, mechanic or subcontractor request Borrower shall certify that all Required Work has been performed in accordance with respect to the completion of its work or delivery of its materialsall Legal Requirements. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Repair, Replacement (or Replacementthe portion thereof completed in accordance with Section 9.5(d)), or the full performance by the leasing agent of its obligations (in the case of Leasing Commissions), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Borrower shall pay all invoices in connection with the Required Work with respect to which a disbursement is requested prior to submitting such request for disbursement from the Reserve Accounts or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender’s disbursement of the Reserve Funds. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $10,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request).
(d) If (i) the cost of any item of contractor performing such Required Work exceeds $250,000requires periodic payments pursuant to terms of a written contract, and (ii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any the applicable Individual Property and are properly secured or have been installed in any such Individual Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event any Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1I, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) % of the estimated cost of such Required Repair as set forth on Schedule 9.1 I (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Replacement Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property Properties specified on Schedule 9.1I, and (v) all other conditions for disbursement under this Agreement have been met, Lender may shall disburse funds from the Required Repair Account.
(g) In the event any Borrower requests a disbursement from the Replacement Reserve Account to pay or reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Replacements specified in the Physical Conditions Report or on Schedule II prepared in connection with the closing of the Loan (an “Additional Replacement”), Borrower shall disclose in writing to Lender the reason why funds in the Replacement Reserve Account should be used to pay for such Additional Replacement. If Lender determines that (i) such Additional Replacement is of the type intended to be covered by the Replacement Reserve Account, (ii) such Additional Replacement is not covered or is not of the type intended to be covered by the Required Repair Account, (iii) costs for such Additional Replacement are reasonable, (iv) the funds in the Replacement Reserve Account are sufficient to pay for such Additional Replacement and all other Replacements for the Properties specified in the Physical Conditions Report, and (v) all other conditions for disbursement under this Agreement have been met, Lender shall disburse funds from the Replacement Reserve Account.
(h) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hi) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. In allocating any such excess, Lender may deal with the Person shown on Lender’s records as being the owner of the applicable Individual Property. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(ij) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(jk) Any Reserve Funds attributable Upon the earlier to an Individual Property that has been released from occur of (i) the Lien timely completion of the Mortgages all Required Repairs and any Additional Required Repairs, if any, in accordance with the terms hereof requirements of this Agreement, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Required Repair Account shall be disbursed returned to Borrower within thirty or the Person shown on Lender’s records as being the owner of the applicable Individual Property and no other party shall have any right or claim thereto.
(30l) days Upon payment in full of the Debt, all amounts remaining on deposit, if any, in the Replacement Reserve Account shall be returned to Borrower or the Person shown on Lender’s records as being the owner of the Properties and no other party shall have any right or claim thereto.
(m) The provisions of this Section 9.5 shall not be applicable with respect to the Replacement Reserve Funds in the event Borrower delivers to Lender a Letter of Credit or the Replacement Letter of Credit Cash Deposit in accordance with Section 9.2 hereof.
(n) Provided Borrower has submitted to Lender all information as may be requested by Lender in which to determine whether to grant any approval required pursuant to this Section 9.5 or to make a disbursement from any reserve account established pursuant to this Article 9, Lender shall use its commercially reasonable efforts (acting in good faith) to respond as promptly as reasonably possible to any request by Borrower for such approval or disbursement; provided, however, that Lender’s failure to respond promptly shall not (i) negate, impair or otherwise adversely affect any rights Lender may have pursuant to the Loan Documents and (ii) be deemed to be an approval by Lender of the requested matter or an agreement by Lender to make such disbursement (or reduction or release, as applicable).
Appears in 1 contract
Samples: Loan Agreement (Capital Lodging)
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f9.9(f)) or ), (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements Replacements, or (including iii) the Leasing Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of Tenant Improvements and/or Leasing Commissions incurred in both casesconnection with Leases entered into in accordance with the Loan Documents, without limitationor (iv) the T-Mobile Reserve Account with respect to such Tenant Improvements consisting of the T-Mobile Work and T-Mobile Parking Structure and/or Leasing Commissions related to the T-Mobile Lease, any project management fees, construction management feesprovided that (A) such Leasing Commissions are in an amount that is customary for properties similar to the applicable Individual Property and the portion of the applicable Individual Property leased for which such Leasing Commissions are due, and other similar fees, whether owed (B) the amount of such Leasing Commissions are determined pursuant to arm’s‑length transactions between Borrower and any Manager or otherwise)leasing agent to which a Leasing Commission is due. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual PropertyProperties, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual Property the Properties or for costs which are to be reimbursed from funds held in the Required RepairRepair Account or for Tenant -109- Improvements and Leasing Commissions. Lender shall disburse such Reserve Funds to Borrower in accordance with this Section 9.9 so long as such funds remain in the respective Reserve Accounts and no Event of Default is continuing. Borrower shall have paid all invoices with respect to which a disbursement is requested or, at the request of Borrower, if Borrower is requesting a payment rather than a reimbursement of all such costs, Lender shall issue joint checks, payable to Borrower and the contractor (or a direct payment directly to such contractor), supplier, materialman, mechanic, subcontractor or other party to whom payment is due. In the case of payments made by joint check or direct payment, Lender may require a conditional waiver of lien from each Person receiving payment prior to Lender’s disbursement.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 100,000 shall be on a form provided or approved by Lender attached hereto as Exhibit 9.9 and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials, and (iv) include, if such request for disbursement is in connection with Tenant Improvements, in connection with the final disbursement in connection with such Tenant Improvements, a certificate from an authorized officer of Borrower stating that such Tenant Improvements have been completed in a manner satisfactory and acceptable to such Tenant(s) and (if in connection with the final disbursement for such Tenant Improvements, unless disbursement is requested pursuant to Section 9.9(d)), such Tenant(s) has accepted the premises demised under the applicable Lease(s), and containing such other information as Lender may reasonably require, in form and substance reasonably satisfactory to Lender, and/or if such request for disbursement is in connection with Leasing Commissions, a certificate from an authorized officer of Borrower that no further sums are due to it in connection with the applicable Lease. Except as provided in Section 9.7(d9.9(d), each request for disbursement shall be made only after completion of the Required Repair Repair, Replacement or ReplacementTenant Improvement (or the portion thereof completed in accordance with Section 9.9(d)), or the full performance by the leasing agent of its obligations (in the case of Leasing Commissions), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence reasonably satisfactory to Lender in its reasonable judgment of such completion or performance, which such evidence may include the delivery of a tenant estoppel certificate reasonably acceptable to Lender, provided however, if such tenant is not required to deliver an estoppel certificate pursuant to its Lease (or otherwise fails to deliver such certificate following Borrower’s written request and commercially reasonable efforts to so obtain), the certificate from Borrower set forth above shall be sufficient in lieu of such estoppel certificate.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any each applicable Individual Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request. In the case of Leasing Commissions, payment shall be made to any leasing agent to which a Leasing Commission is due in the amount of invoices submitted by such leasing agent, provided all of the other conditions for disbursements for such Leasing Commissions are satisfied in the reasonable judgment of Lender.
(d) If the cost of any item of Required Work exceeds $250,00050,000, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) the materials for which the request is made are on site at any the applicable Individual Property and are properly secured or have been installed in any the applicable Individual Property, (B) all other conditions in this Agreement for disbursement have been satisfied, and (C) in the case of a Replacement or Tenant Improvement, funds remaining in the Replacement Reserve Account or Leasing Reserve Account, as the case may be, are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required or to complete such Tenant Improvement and other Tenant Improvements when required, as the case may be.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work or Leasing Commission for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Replacement Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property Properties specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve AccountBorrower, so long as no Event of Default is then continuing. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after written notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 1 contract
Samples: Loan Agreement (Griffin Capital Essential Asset REIT, Inc.)
Release of Reserve Funds. (a) Upon Within ten (10) days following written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (zy) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual Property or for costs which are to be reimbursed from funds held in the Required RepairProperty.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each Each request for disbursement in excess from any of $250,000 the Reserve Accounts shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from . With each contractor, supplier, materialman, mechanic or subcontractor request Borrower shall certify that all Required Work has been performed in accordance with respect to the completion of its work or delivery of its materialsall Legal Requirements. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Replacement (or Replacementthe portion thereof completed in accordance with Section 9.5(d)), or the full performance by the leasing agent of its obligations (in the case of Leasing Commissions), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Borrower shall pay all invoices in connection with the Required Work with respect to which a disbursement is requested prior to submitting such request for disbursement from the Reserve Accounts or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender’s disbursement of the Reserve Funds. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $10,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request).
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Leasing Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) Tenant Improvements and/or Leasing Commissions incurred in connection with Leases entered into in accordance with the Loan Documents, or, with respect to $211,613.42 of the original estimated cost of deposit made on the date hereof, those Leases entered into with the TI/LC Tenants, provided that (A) such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower Leasing Commissions are reasonable and customary for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Reserve Account properties similar to the extent necessary to pay Property and the portion of the Property leased for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management feeswhich such Leasing Commissions are due, and other similar fees, whether owed to any Manager or otherwise). Notwithstanding the preceding sentence, in no event shall Lender be required to (xB) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after such Leasing Commissions are determined pursuant to arm’s-length transactions between Borrower and any leasing agent to which a Leasing Commission is due.
(b) Each request for disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual Property or for costs which are to be reimbursed from funds held in the Required Repair.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, made and (iii) include, if such request for disbursement is in connection with Tenant Improvements, a certificate from the Tenant(s) for which the Tenant Improvements have been performed stating that such Tenant Improvements have been completed in a manner satisfactory and acceptable to such Tenant(s) and (unless disbursement is requested by pursuant to Section 9.5(d)), such Tenant(s) has accepted the premises demised under the applicable Lease(s), and containing such other information as Lender may require, in form and substance reasonably satisfactory to Lender, conditional lien waivers and/or if such request for disbursement is in connection with Leasing Commissions, a certificate from the leasing agent that no further sums are due to it in connection with the applicable Lease. With each contractor, supplier, materialman, mechanic request Borrower shall certify that all Required Work has been or subcontractor will be performed in accordance with respect to the completion of its work or delivery of its materialsall Legal Requirements. With each request Borrower shall certify that all Required Work has been performed in accordance with all Legal Requirements. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Repair, Replacement or ReplacementTenant Improvement (or the portion thereof completed in accordance with Section 9.5(d)), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Borrower shall use each disbursement to pay all invoices in connection with the Required Work with respect to which such disbursement is requested or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. Lender may require in its sole discretion a conditional waiver of lien (conditioned only on payment) from each Person receiving payment prior to Lender’s disbursement of the Reserve Funds. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $10,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request). In the case of Leasing Commissions, payment shall be made to any leasing agent to which a Leasing Commission is due in the amount of invoices submitted by such leasing agent, provided all of the other conditions for disbursements for such Leasing Commissions are satisfied in the judgment of Lender.
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work or Leasing Commission for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hg) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. In allocating any such excess, Lender may deal with the Person shown on Lender’s records as being the owner of the Property. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(ih) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(ji) Any Reserve Funds attributable Upon the earlier to an Individual Property that has been released from occur of (i) the Lien completion of all Tenant Improvements and the full performance by the leasing agent of its obligations with respect to any Leasing Commissions, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Mortgages Debt, all amounts remaining on deposit, if any, in accordance with the terms hereof Leasing Reserve Account shall be disbursed returned to Borrower within thirty (30) days or the Person shown on Lender’s records as being the owner of such releasethe Property and no other party shall have any right or claim thereto.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f9.9(f)) or ), (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements Replacements, or (including iii) the Leasing Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of Tenant Improvements and/or Leasing Commissions incurred in both casesconnection with Leases entered into in accordance with the Loan Documents, without limitation, any project management fees, construction management feesprovided that (A) such Leasing Commissions are in an amount that is customary for properties similar to the applicable Individual Property and the portion of the applicable Individual Property leased for which such Leasing Commissions are due, and other similar fees, whether owed (B) the amount of such Leasing Commissions are determined pursuant to arm’s‑length transactions between Borrower and any Manager or otherwise)leasing agent to which a Leasing Commission is due. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual PropertyProperties, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual Property the Properties or for costs which are to be reimbursed from funds held in the Required RepairRepair Account or for Tenant Improvements and Leasing Commissions. Lender shall disburse such Reserve Funds to Borrower in accordance with this Section 9.9 so long as such funds remain in the respective Reserve Accounts and no Event of Default is continuing. Borrower shall have paid all invoices with respect to which a disbursement is requested or, at the request of Borrower, if Borrower is requesting a payment rather than a reimbursement of all such costs, Lender shall issue joint checks, payable to Borrower and the contractor (or a direct payment directly to such contractor), supplier, materialman, mechanic, subcontractor or other party to whom payment is due. In the case of payments made by joint check or direct payment, Lender may require a conditional waiver of lien from each Person receiving payment prior to Lender’s disbursement.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 100,000 shall be on a form provided or approved by Lender attached hereto as Exhibit 9.9 and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials, and (iv) include, if such request for disbursement is in connection with Tenant Improvements, in connection with the final disbursement in connection with such Tenant Improvements, a certificate from an authorized officer of Borrower stating that such Tenant Improvements have been completed in a manner satisfactory and acceptable to such Tenant(s) and (if in connection with the final disbursement for such Tenant Improvements, unless disbursement is requested pursuant to Section 9.9(d)), such Tenant(s) has accepted the premises demised under the applicable Lease(s), and containing such other information as Lender may reasonably require, in form and substance reasonably satisfactory to Lender, and/or if such request for disbursement is in connection with Leasing Commissions, a certificate from an authorized officer of Borrower that no further sums are due to it in connection with the applicable Lease. Except as provided in Section 9.7(d9.9(d), each request for disbursement shall be made only after completion of the Required Repair Repair, Replacement or ReplacementTenant Improvement (or the portion thereof completed in accordance with Section 9.9(d)), or the full performance by the leasing agent of its obligations (in the case of Leasing Commissions), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence reasonably satisfactory to Lender in its reasonable judgment of such completion or performance, which such evidence may include the delivery of a tenant estoppel certificate reasonably acceptable to Lender, provided however, if such tenant is not required to deliver an estoppel certificate pursuant to its Lease (or otherwise fails to deliver such certificate following Borrower’s written request and commercially reasonable efforts to so obtain), the certificate from Borrower set forth above shall be sufficient in lieu of such estoppel certificate.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any each applicable Individual Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request. In the case of Leasing Commissions, payment shall be made to any leasing agent to which a Leasing Commission is due in the amount of invoices submitted by such leasing agent, provided all of the other conditions for disbursements for such Leasing Commissions are satisfied in the reasonable judgment of Lender.
(d) If the cost of any item of Required Work exceeds $250,00050,000, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) the materials for which the request is made are on site at any the applicable Individual Property and are properly secured or have been installed in any the applicable Individual Property, (B) all other conditions in this Agreement for disbursement have been satisfied, and (C) in the case of a Replacement or Tenant Improvement, funds remaining in the Replacement Reserve Account or Leasing Reserve Account, as the case may be, are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required or to complete such Tenant Improvement and other Tenant Improvements when required, as the case may be.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work or Leasing Commission for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Replacement Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property Properties specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve AccountBorrower, so long as no Event of Default is then continuing. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after written notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 1 contract
Samples: Loan Agreement (Griffin Capital Essential Asset REIT II, Inc.)
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements or (including in both casesii) the Leasing Reserve Account to the extent necessary to reimburse Borrower for the actual costs of Tenant Improvements and/or Leasing Commissions incurred, without limitation, any project management fees, construction management feesprovided that (A) such Leasing Commissions are reasonable and customary for properties similar to the Property and the portion of the Property leased for which such Leasing Commissions are due, and other similar fees, whether owed (B) the amount of such Leasing Commissions are determined pursuant to arm's-length transactions between Borrower and any Manager or otherwise)leasing agent to which a Leasing Commission is due. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (zy) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower pay for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required RepairTenant Improvements and Leasing Commissions.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each Each request for disbursement in excess from any of $250,000 the Reserve Accounts shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, made and (iii) include, if such request for disbursement is in connection with Tenant Improvements, a certificate from the Tenant(s) for which the Tenant Improvements have been performed stating that such Tenant Improvements have been completed in a manner satisfactory and acceptable to such Tenant(s) and (unless disbursement is requested by pursuant to Section 9.5(d)), such Tenant(s) has accepted the premises demised under the applicable Lease(s), and containing such other information as Lender may require, in form and substance reasonably satisfactory to Lender, conditional lien waivers and/or if such request for disbursement is in connection with Leasing Commissions, a certificate from the leasing agent that no further sums are due to it in connection with the applicable Lease. With each contractor, supplier, materialman, mechanic request Borrower shall certify that all Required Work has been or subcontractor will be performed in accordance with respect to the completion of its work or delivery of its materialsall Legal Requirements. With each request Borrower shall certify that all Required Work has been performed in accordance with all Legal Requirements. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Replacement or ReplacementTenant Improvement (or the portion thereof completed in accordance with Section 9.5(d)), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Borrower shall use each disbursement to pay all invoices in connection with the Required Work with respect to which such disbursement is requested or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. Lender may require in its sole discretion a conditional waiver of lien (conditioned only on payment) from each Person receiving payment prior to Lender's disbursement of the Reserve Funds. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $10,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request). In the case of Leasing Commissions, payment shall be made to any leasing agent to which a Leasing Commission is due in the amount of invoices submitted by such leasing agent, provided all of the other conditions for disbursements for such Leasing Commissions are satisfied in the judgment of Lender.
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s 's judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work or Leasing Commission for which the disbursement is requested.
(f) [Intentionally omitted].
(g) In the event Borrower requests a disbursement from the Required Repair Replacement Reserve Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs Replacements specified on Schedule 9.1, or for a Required Repair to in the extent Physical Conditions Report prepared in connection with the cost of such Required Repair exceeds one hundred twenty-five (125%) closing of the estimated cost of such Required Repair as set forth on Schedule 9.1 Loan (in either case, an “Additional Required Repair”"ADDITIONAL REPLACEMENT"), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Replacement Reserve Account should be used to pay for such Additional Required RepairReplacement. If Lender determines in its reasonable discretion that (i) such Additional Required Repair Replacement is of the type intended to be covered by the Required Repair Replacement Reserve Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account[intentionally omitted], (iii) costs for such Additional Required Repair Replacement are reasonable, (iv) the funds in the Required Repair Replacement Reserve Account are sufficient to pay for such Additional Required Repair Replacement and all other Required Repairs Replacements for the applicable Individual Property specified on Schedule 9.1in the Physical Conditions Report, and (v) all other conditions for disbursement under this Agreement have been met, Lender may shall disburse funds from the Required Repair Replacement Reserve Account.
(gh) Lender’s 's disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hi) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. In allocating any such excess, Lender may deal with the Person shown on Lender's records as being the owner of the Property. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(ij) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(jk) Any Reserve Funds attributable to an Individual Property that has been released from the Lien Upon payment in full of the Mortgages Debt, all amounts remaining on deposit, if any, in accordance with the terms hereof Replacement Reserve Account shall be disbursed returned to Borrower within thirty or the Person shown on Lender's records as being the owner of the Property and no other party shall have any right or claim thereto.
(30l) days Upon the earlier to occur of such release(i) the completion of all Tenant Improvements and the full performance by the leasing agent of its obligations with respect to any Leasing Commissions, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Leasing Reserve Account shall be returned to Borrower or the Person shown on Lender's records as being the owner of the Property and no other party shall have any right or claim thereto.
(m) Notwithstanding any other provision hereof to the contrary, Borrower shall not be entitled to the disbursement of more than $6,007,242 with respect to Tenant Improvements and Leasing Commission due with respect to the Latham Lease, and more than $7,551,798.00 with respect to Tenant Imxxxxxxents and Leasing Commission due with respect to the MoFo Lease.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Leasing Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) Tenant Improvements and/or Leasing Commissions incurred in connection with Leases entered into in accordance with the Loan Documents, or, with respect to $2,350,153.00 of the original estimated cost of deposit made on the date hereof, those Leases entered into with the TI/LC Tenants, provided that (A) such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower Leasing Commissions are reasonable and customary for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Reserve Account properties similar to the extent necessary to pay Property and the portion of the Property leased for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management feeswhich such Leasing Commissions are due, and other similar fees, whether owed to any Manager or otherwise). Notwithstanding the preceding sentence, in no event shall Lender be required to (xB) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after such Leasing Commissions are determined pursuant to arm’s-length transactions between Borrower and any leasing agent to which a Leasing Commission is due.
(b) Each request for disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual Property or for costs which are to be reimbursed from funds held in the Required Repair.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, made and (iii) include, if such request for disbursement is in connection with Tenant Improvements, a certificate from the Tenant(s) for which the Tenant Improvements have been performed stating that such Tenant Improvements have been completed in a manner satisfactory and acceptable to such Tenant(s) and (unless disbursement is requested by pursuant to Section 9.5(d)), such Tenant(s) has accepted the premises demised under the applicable Lease(s), and containing such other information as Lender may require, in form and substance reasonably satisfactory to Lender, conditional lien waivers and/or if such request for disbursement is in connection with Leasing Commissions, a certificate from the leasing agent that no further sums are due to it in connection with the applicable Lease. With each contractor, supplier, materialman, mechanic request Borrower shall certify that all Required Work has been or subcontractor will be performed in accordance with respect to the completion of its work or delivery of its materialsall Legal Requirements. With each request Borrower shall certify that all Required Work has been performed in accordance with all Legal Requirements. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Repair, Replacement or ReplacementTenant Improvement (or the portion thereof completed in accordance with Section 9.5(d)), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Borrower shall use each disbursement to pay all invoices in connection with the Required Work with respect to which such disbursement is requested or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. Lender may require in its sole discretion a conditional waiver of lien (conditioned only on payment) from each Person receiving payment prior to Lender’s disbursement of the Reserve Funds. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $10,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request). In the case of Leasing Commissions, payment shall be made to any leasing agent to which a Leasing Commission is due in the amount of invoices submitted by such leasing agent, provided all of the other conditions for disbursements for such Leasing Commissions are satisfied in the judgment of Lender.
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work or Leasing Commission for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hg) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. In allocating any such excess, Lender may deal with the Person shown on Lender’s records as being the owner of the Property. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(ih) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(ji) Any Reserve Funds attributable Upon the earlier to an Individual Property that has been released from occur of (i) the Lien completion of all Tenant Improvements and the full performance by the leasing agent of its obligations with respect to any Leasing Commissions, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Mortgages Debt, all amounts remaining on deposit, if any, in accordance with the terms hereof Leasing Reserve Account shall be disbursed returned to Borrower within thirty (30) days or the Person shown on Lender’s records as being the owner of such releasethe Property and no other party shall have any right or claim thereto.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required RepairRepair Account.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 50,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials. Except as provided in Section 9.7(d), each request for disbursement shall be made only after completion of the Required Repair Repair, Replacement (or Replacementthe portion thereof completed in accordance with Section 9.7(d)), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request.
(d) If the cost of any item of Required Work exceeds $250,00050,000, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (B) all other conditions in this Agreement for disbursement have been satisfied, and (C) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Replacement Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this AgreementSection 9.5, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or to reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) % of the original estimated cost of such Required Repair as set forth on Schedule 9.1I, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f9.5(f)) or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) % of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required RepairRepair Account.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 50,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair or ReplacementReplacement (or the portion thereof completed in accordance with Section 9.5(d)), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request.
(d) If (i) the cost of any item of Required Work exceeds $250,000200,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 100,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event any Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1I, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) % of the estimated cost of such Required Repair as set forth on Schedule 9.1 I (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender reasonably determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Replacement Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1I, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) In the event any Borrower requests a disbursement from the Replacement Reserve Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Replacements specified in the Property Condition Report prepared in connection with the closing of the Loan (an “Additional Replacement”), Borrower shall disclose in writing to Lender the reason why funds in the Replacement Reserve Account should be used to pay for such Additional Replacement. If Lender reasonably determines that (i) such Additional Replacement is of the type intended to be covered by the Replacement Reserve Account, (ii) such Additional Replacement is not covered or is not of the type intended to be covered by the Required Repair Account, (iii) costs for such Additional Replacement are reasonable, (iv) the funds in the Replacement Reserve Account are sufficient to pay for such Additional Replacement and all other Replacements for the Property specified in the Property Condition Report, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Replacement Reserve Account.
(h) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hi) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(ij) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(jk) Any Reserve Funds attributable Upon the earlier to an Individual Property that has been released from occur of (i) the Lien timely completion of the Mortgages all Required Repairs and any Additional Required Repairs, if any, in accordance with the terms hereof requirements of this Agreement, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Required Repair Account shall be disbursed returned to Borrower within thirty or the Person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto.
(30l) days Upon payment in full of such releasethe Debt, all amounts remaining on deposit, if any, in the Replacement Reserve Account shall be promptly returned to Borrower or the Person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto.
(m) Upon the payment in full of the Debt, all amounts remaining on deposit, if any, in the Leasing Reserve Account shall be promptly returned to Borrower or the Person shown on Lender’s records as being the owner of the Property and no other party shall have any right or claim thereto.
Appears in 1 contract
Samples: Loan Agreement (AmREIT, Inc.)
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) of the original estimated cost of such Required Repair as set forth on Schedule 9.1, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f)) or (ii) the FF&E Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise). Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual Property or for costs which are to be reimbursed from funds held in the Required Repair.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each request for disbursement in excess of $250,000 shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or materials purchased and all labor or services provided, (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from each contractor, supplier, materialman, mechanic or subcontractor with respect to the completion of its work or delivery of its materials. Except as provided in Section 9.7(d), each request for disbursement shall be made only after completion of the Required Repair or Replacement, as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request.
(d) If the cost of any item of Required Work exceeds $250,000, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) the materials for which the request is made are on site at any Individual Property and are properly secured or have been installed in any Individual Property, (B) all other conditions in this Agreement for disbursement have been satisfied, and (C) in the case of a Replacement are, in Lender’s judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1, Schedule
9.1 or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) of the estimated cost of such Required Repair as set forth on Schedule 9.1 (in either case, an “Additional Required Repair”), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) Lender’s disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(h) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(i) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(j) Any Reserve Funds attributable to an Individual Property that has been released from the Lien of the Mortgages in accordance with the terms hereof shall be disbursed to Borrower within thirty (30) days of such release.
Appears in 1 contract
Release of Reserve Funds. (a) Upon written request from Borrower and satisfaction of the requirements set forth in this Agreement, Lender shall disburse to Borrower within thirty (30) days amounts from (i) the Required Repair Account to the extent necessary to pay for or reimburse Borrower for the actual costs of each Required Repair (but not exceeding one hundred twenty-five percent (125%) % of the original estimated cost of such Required Repair as set forth on Schedule 9.1I, unless Lender has agreed to reimburse Borrower for such excess cost pursuant to Section 9.7(f9.5(f)) ); the Washington Mutual Reserve Account upon Lender's receipt of a tenant estoppel certificate evidencing that Washington Mutual has been paid all tenant improvement allowances due and owing under its lease; or (ii) the FF&E Replacement Reserve Account to the extent necessary to pay for or reimburse Borrower for the actual costs of any approved Replacements (including in both cases, without limitation, any project management fees, construction management fees, and other similar fees, whether owed to any Manager or otherwise)Replacements. Notwithstanding the preceding sentence, in no event shall Lender be required to (x) disburse any amounts which would cause the amount of funds remaining in the Required Repair Account after any disbursement (other than with respect to the final disbursement) to be less than one hundred twenty-five percent (125%) % of the then current estimated cost of completing all remaining Required Repairs for the applicable Individual Property, (y) disburse funds from any of the Reserve Accounts if an Event of Default exists, or (z) disburse funds from the FF&E Replacement Reserve Account to reimburse Borrower for the costs of routine repairs or maintenance to any Individual the Property or for costs which are to be reimbursed from funds held in the Required RepairRepair Account.
(b) With each request for disbursement, Borrower shall certify in writing to Lender that all Required Work has been performed in accordance with all Legal Requirements and that all such Required Work has been completed lien free and paid for in full or will be paid for in full upon disbursement of the requested funds. In addition, each Each request for disbursement in excess from any of $250,000 the Reserve Accounts shall be on a form provided or approved by Lender and shall (i) include copies of invoices for all items or 50 materials purchased and all labor or services provided, provided and (ii) specify (A) the Required Work for which the disbursement is requested, (B) the quantity and price of each item purchased, if the Required Work includes the purchase or replacement of specific items, (C) the price of all materials (grouped by type or category) used in any Required Work other than the purchase or replacement of specific items, and (D) the cost of all contracted labor or other services applicable to each Required Work for which such request for disbursement is made, (iii) if requested by Lender, conditional lien waivers from . With each contractor, supplier, materialman, mechanic or subcontractor request Borrower shall certify that all Required Work has been performed in accordance with respect to the completion of its work or delivery of its materialsall Legal Requirements. Except as provided in Section 9.7(d9.5(d), each request for disbursement shall be made only after completion of the Required Repair Repair, Replacement (or Replacementthe portion thereof completed in accordance with Section 9.5(d)), or the full performance by the leasing agent of its obligations (in the case of Leasing Commissions), as applicable, for which disbursement is requested. Borrower shall provide Lender evidence satisfactory to Lender in its reasonable judgment of such completion or performance.
(c) Borrower shall pay all invoices in connection with the Required Work with respect to which a disbursement is requested prior to submitting such request for disbursement from the Reserve Accounts or, at the request of Borrower, Lender will issue joint checks, payable to Borrower and the contractor, supplier, materialman, mechanic, subcontractor or other party to whom payment is due in connection with the Required Work. In the case of payments made by joint check, Lender may require a waiver of lien from each Person receiving payment prior to Lender's disbursement of the Reserve Funds. In addition, as a condition to any disbursement, Lender may require Borrower to obtain lien waivers from each contractor, supplier, materialman, mechanic or subcontractor who receives payment in an amount equal to or greater than $10,000 for completion of its work or delivery of its materials. Any lien waiver delivered hereunder shall conform to all Legal Requirements and shall cover all work performed and materials supplied (including equipment and fixtures) for any Individual the Property by that contractor, supplier, subcontractor, mechanic or materialman through the date covered by the current disbursement request (or, in the event that payment to such contractor, supplier, subcontractor, mechanic or materialmen is to be made by a joint check, the release of lien shall be effective through the date covered by the previous release of funds request).
(d) If (i) the cost of any item of Required Work exceeds $250,00050,000, (ii) the contractor performing such Required Work requires periodic payments pursuant to terms of a written contract, and (iii) Lender has approved in writing in advance such periodic payments, a request for disbursement from the Reserve Accounts may be made after completion of a portion of the work under such contract, provided (A) such contract requires payment upon completion of such portion of work, (B) the materials for which the request is made are on site at any Individual the Property and are properly secured or have been installed in any Individual the Property, (BC) all other conditions in this Agreement for disbursement have been satisfied, and (CD) in the case of a Replacement, funds remaining in the Replacement Reserve Account are, in Lender’s 's judgment, sufficient to complete such Replacement and other Replacements when required.
(e) Borrower shall not make a request for, nor shall Lender have any obligation to make, any disbursement from any Reserve Account more frequently than once in any calendar month for each Individual Property and (except in connection with the final disbursement) in any amount less than the lesser of (i) $10,000 or (ii) the total cost of the Required Work for which the disbursement is requested.
(f) In the event any Borrower requests a disbursement from the Required Repair Account to pay for or to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Required Repairs specified on Schedule 9.1I, or for a Required Repair to the extent the cost of such Required Repair exceeds one hundred twenty-five (125%) % of the estimated cost of such Required Repair as set forth on Schedule 9.1 I (in either case, an “Additional Required Repair”"ADDITIONAL REQUIRED REPAIR"), Borrower shall disclose in writing to Lender the reason why funds in the Required Repair Account should be used to pay for such Additional Required Repair. If Lender determines that (i) such Additional Required Repair is of the type intended to be covered by the Required Repair Account, (ii) such Additional Required Repair is not covered or is not of the type intended to be covered by the FF&E Replacement Reserve Account, (iii) costs for such Additional Required Repair are reasonable, (iv) the funds in the Required Repair Account are sufficient to pay for such Additional Required Repair and all other Required Repairs for the applicable Individual Property specified on Schedule 9.1I, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Required Repair Account.
(g) In the event any Borrower requests a disbursement from the Replacement Reserve Account to reimburse Borrower for the actual cost of labor or materials used in connection with repairs or improvements other than the Replacements specified in the Physical Conditions Report prepared in connection with the closing of the Loan (an "ADDITIONAL REPLACEMENT"), Borrower shall disclose in writing to Lender the reason why funds in the Replacement Reserve Account should be used to pay for such Additional Replacement. If Lender determines that (i) such Additional Replacement is of the type intended to be covered by the Replacement Reserve Account, (ii) such Additional Replacement is not covered or is not of the type intended to be covered by the Required Repair Account, (iii) costs for such Additional Replacement are reasonable, (iv) the funds in the Replacement Reserve Account are sufficient to pay for such Additional Replacement and all other Replacements for the Property specified in the Physical Conditions Report, and (v) all other conditions for disbursement under this Agreement have been met, Lender may disburse funds from the Replacement Reserve Account.
(h) Lender’s 's disbursement of any Reserve Funds or other acknowledgment of completion of any Required Work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any Person that the Required Work has been completed in accordance with Legal Requirements.
(hi) If the funds in any Reserve Account should exceed the amount of payments actually applied by Lender for the purposes of the account, Lender in its sole discretion shall either return any excess to Borrower or credit such excess against future payments to be made to that Reserve Account. In allocating any such excess, Lender may deal with the Person shown on Lender's records as being the owner of the Property. If at any time Lender reasonably determines that the Reserve Funds are not or will not be sufficient to make the required payments, Lender shall notify Borrower of such determination and Borrower shall pay to Lender any amount necessary to make up the deficiency within ten (10) days after notice from Lender to Borrower requesting payment thereof.
(ij) The insufficiency of any balance in any of the Reserve Accounts shall not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents.
(jk) Any Reserve Funds attributable Upon the earlier to an Individual Property that has been released from occur of (i) the Lien timely completion of the Mortgages all Required Repairs and any Additional Required Repairs, if any, in accordance with the terms hereof requirements of this Agreement, as verified by Lender in its reasonable discretion, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Required Repair Account shall be disbursed returned to Borrower within thirty or the Person shown on Lender's records as being the owner of the Property and no other party shall have any right or claim thereto.
(30l) days Upon payment in full of such releasethe Debt, all amounts remaining on deposit, if any, in the Replacement Reserve Account shall be returned to Borrower or the Person shown on Lender's records as being the owner of the Property and no other party shall have any right or claim thereto.
(m) Upon the earlier to occur of (i) Lender's receipt of a tenant estoppel certificate from Washington Mutual evidencing that all tenant improvement allowances under its lease have been paid, or (ii) the payment in full of the Debt, all amounts remaining on deposit, if any, in the Leasing Reserve Account shall be returned to Borrower or the Person shown on Lender's records as being the owner of the Property and no other party shall have any right or claim thereto.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
