Restoration Following Fire and Other Casualty or Condemnation. In the event of damage to any Site by reason of fire or other hazard or casualty, Borrower shall give prompt written notice thereof to Lender and shall proceed with reasonable diligence to perform repair, replacement and/or rebuilding work (hereinafter referred to as the “Work”) to restore the Site(s) to its condition prior to such damage in full compliance with all legal requirements. In the event of a taking by power of eminent domain or conveyance in lieu thereof (“condemnation”), if restoration is feasible as reasonably determined by Borrower and Lender, then Borrower shall proceed with reasonable diligence to perform such restoration (also referred to as the “Work”). Before commencing the Work with a cost in excess of the Loss Threshold, Borrower shall obtain the approval of Lender with respect to any plans and specifications and any material design or construction contracts, which approval shall not be unreasonably withheld, conditioned, or delayed, and thereafter Borrower shall perform the Work diligently and in good faith substantially in accordance with the approved plans and specifications and shall cause the lien free completion of such Work. Upon completion of the Work, Borrower shall deliver to Lender a reasonably acceptable survey, architect’s and/or engineer’s certificate, title endorsement, certificate of occupancy, and such other documentation as is reasonably required by Lender. If Lender shall have elected or, as provided in Section 13 hereof, is required to apply any insurance proceeds or condemnation awards toward repair or restoration of the Site(s), then Borrower shall enter into escrow/construction funding arrangements reasonably satisfactory to Lender prior to the disbursement of any proceeds.
Appears in 3 contracts
Samples: Master Loan Agreement (STAG Industrial, Inc.), Master Loan Agreement (STAG Industrial, Inc.), Master Loan Agreement (STAG Industrial, Inc.)
Restoration Following Fire and Other Casualty or Condemnation. In the event of damage to any Site the Security by reason of fire or other hazard or casualty, Borrower Grantor shall give prompt written notice thereof to Lender Grantee and shall proceed with reasonable diligence to perform repair, replacement and/or rebuilding work (hereinafter referred to as the “"Work”") to restore the Site(s) Security to its condition prior to such damage in full compliance with all legal requirements. In the event of a taking by power of eminent domain or conveyance in lieu thereof (“"condemnation”"), if restoration is feasible as reasonably determined by Borrower and LenderGrantee, then Borrower Grantor shall proceed with reasonable diligence to perform such restoration (also referred to as the “"Work”"). Before commencing the Work Work, Grantor shall comply with the following requirements:
(a) If the casualty or condemnation is of a cost in excess of the Loss Thresholdnature that requires plans and specifications, Borrower Grantor shall obtain the approval of Lender with respect furnish to any Grantee complete plans and specifications and any material design or construction contractsfor the Work, for Grantee's approval, which approval shall not be unreasonably withheld. Said plans and specifications shall bear the signed approval thereof by an architect satisfactory to Grantee and shall be accompanied by the architect's signed estimate, conditionedbearing the architect's seal, of the entire cost of completing the Work.
(b) Grantor shall furnish to Grantee true and correct copies of all permits and approvals required by law in connection with the commencement and conduct of the Work.
(c) If required by Grantee in its reasonable discretion, Grantor shall furnish to Grantee, prior to the commencement of the Work, a surety bond for or guaranty of completion of and payment for the Work, which bond or guaranty shall be in form satisfactory to Grantee and shall be signed by a surety or sureties, or delayedguarantor or guarantors, as the case may be, who are acceptable to Grantee, and in an amount not less than the architect's estimate of the entire cost of completing the Work, less the amount of insurance proceeds or condemnation award, if any, then held by Grantee and which Grantee shall have elected or shall be required to apply toward restoration of the Security as provided in Section 10 hereof. Grantor shall not commence any of the Work until Grantor shall have complied with the above requirements, and thereafter Borrower Grantor shall perform the Work diligently and in good faith substantially in accordance with the approved plans and specifications and shall cause the lien free completion of such Workreferred to in subsection (a) above. Upon completion of the Work, Borrower shall deliver to Lender a reasonably acceptable survey, architect’s and/or engineer’s certificate, title endorsement, certificate of occupancy, and such other documentation as is reasonably required by Lender. If Lender shall have elected orIf, as provided in Section 13 10 hereof, Grantee shall have elected or is required to apply any insurance proceeds or condemnation awards toward repair or restoration of the Site(sSecurity, then so long as the Work is being diligently performed by Grantor in accordance with the provisions of this Deed, Grantee shall disburse such insurance proceeds or condemnation awards to Grantor from time to time during the course of the Work in accordance with the following provisions:
A. The Work shall be in the charge of an experienced construction manager satisfactory to Grantee with the consultation of any architect or engineer required pursuant to Section 9(a) above or otherwise required by Grantee in its reasonable discretion.
B. Each request for payment shall not be made more often than at thirty (30) day intervals, on ten (10) business days prior notice to Grantee, and shall be accompanied by a certificate of the architect or engineer, if any (or, if none, by a certificate of Grantor), then Borrower shall enter into escrow/construction funding arrangements reasonably satisfactory to Lender dated not more than ten (10) days prior to the application for withdrawal of funds, stating:
(i) that all of the Work for which payment is being requested is in place and has been completed in compliance with the approved plans and specifications and all applicable legal requirements;
(ii) that the sum then requested to be withdrawn has been paid by Grantor and/or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons (whose names and addresses shall be stated) who have rendered or furnished certain services or materials for the Work and giving a brief description of such services and materials and the principal subdivisions or categories thereof and the respective amounts so paid or due to each of said persons in respect thereof and stating the progress of the Work up to the date of said certificate;
(iii) that the sum then requested to be withdrawn, plus all sums previously withdrawn, does not exceed the cost of the Work insofar as actually accomplished up to the date of such certificate;
(iv) that the remainder of the moneys held by Grantee will be sufficient to pay in full for the completion of the Work;
(v) that no part of the cost of the services and materials described in the foregoing paragraph (ii) of this Clause B has been or is being made the basis of the withdrawal of any funds in any previous or then pending application; and
(vi) that, except for the amounts, if any, specified in the foregoing paragraph (ii) of this Clause B to be due for services or materials, there is no outstanding indebtedness known, after due inquiry, which is then due and payable for work, labor, services or materials in connection with the Work which, if unpaid, might become the basis of a vendor's, mechanic's, laborer's or materialman's statutory or other similar lien upon the Security or any part thereof.
C. Grantor shall deliver to Grantee satisfactory evidence that the Security and every part thereof, and all materials and all property described in the certificate furnished pursuant to the foregoing Clause B, are free and clear of all mortgages, liens, charges or encumbrances, except (a) encumbrances, if any, securing indebtedness due to persons (whose names and addresses and the several amounts due them shall be stated) specified in said certificate furnished pursuant to the foregoing Clause B, which encumbrances will be discharged upon disbursement of the funds then being requested, and (b) this Deed. Grantee shall accept as satisfactory evidence under this Clause C a certificate of a title insurance company acceptable to Grantee or an endorsement to Grantee's existing loan title policy insuring the lien and security title of this Deed, dated as of the date of the making of the disbursement, confirming the foregoing.
D. If the casualty or condemnation results in the construction of any proceedsimprovements outside the foundations of improvements existing prior to the casualty or condemnation, Grantor shall deliver to Grantee a survey of the Security dated as of a date within ten (10) days prior to the making of the advance (or revised to a date within ten days prior to the advance) showing no encroachments other than those, if any, acceptable to Grantee.
E. There shall be no Event of Default by Grantor under the Note or under any of the other Loan Documents, or any state of facts existing which, with the passage of time or the giving of notice, or both, would constitute an Event of Default. Grantee at its option may waive any of the foregoing requirements. Upon compliance by Grantor with the foregoing Clauses A, B, C, D, and E (except for such requirements, if any, as Grantee at its option may have waived), Grantor shall, to the extent of the insurance proceeds or condemnation award, if any, which Grantee shall have elected or shall be required to apply to restoration of the Security, pay or cause to be paid to the persons named in the certificate furnished pursuant to the foregoing paragraph (i) of Clause B, the respective amounts stated in said certificate to be due them (after taking into account a ten percent (10%) retainage ("Retainage") prior to completion) and Grantee shall pay to Grantor the amounts stated in said certificate to have been paid by Grantor (after taking into account the Retainage prior to completion). If upon completion of the Work there shall be insurance proceeds or condemnation awards held by Grantee over and above the amounts withdrawn pursuant to the foregoing provisions, plus Retainage, then Grantee, at Grantee's option, may either retain such proceeds or awards and apply the same in reduction of the Indebtedness in whatever order Grantee may elect, or Grantee may pay over such proceeds or awards to Grantor. Upon completion of the Work, in addition to the requirements of the foregoing Clauses A, B, C, D, and E, Grantor shall promptly deliver to Grantee:
(a) A written certificate of the architect or engineer, if any (or, if none, a written certificate of Grantor), that the Work has been fully completed in a good and workmanlike manner in accordance with the approved plans and specifications, if any;
(b) A written report and endorsement to a policy of a title insurance company acceptable to Grantee insuring the Security against mechanics' and materialmen's liens;
(c) A certificate by Grantor in form and substance satisfactory to Grantee, listing all costs and expenses in connection with the completion of the Work and the amount paid by Grantor with respect to the Work;
(d) If required, a temporary certificate of occupancy and all other applicable certificates, licenses, consents and approvals issued by governmental agencies or authorities with respect to the Security and by the appropriate Board of Fire Underwriters or other similar bodies acting in and for the locality in which the Security is situated, provided that within thirty (30) days after completion of the Work, Grantor shall obtain and deliver to Grantee a permanent certificate of occupancy for the Security. Upon receipt of the foregoing items, Grantee shall pay any Retainage held by Grantee for the benefit of Grantor.
Appears in 1 contract
Samples: Deed to Secure Debt and Security Agreement (Century Properties Fund Xix)
Restoration Following Fire and Other Casualty or Condemnation. In the event of damage to any Site the Security by reason of fire or other hazard or casualty, Borrower Mortgagor shall give prompt written notice thereof to Lender Mortgagee and (subject to the following provisions) shall proceed with reasonable diligence to perform repair, replacement and/or rebuilding work (hereinafter referred to as the “"Work”") to restore the Site(s) Security to substantially its condition prior to such damage in full compliance in all material respects with all legal requirements, provided that Mortgagee makes insurance proceeds available therefor. In the event of a taking by power of eminent domain or conveyance in lieu thereof (“"condemnation”"), if restoration is feasible as reasonably determined by Borrower and LenderMortgagee, then Borrower Mortgagor (subject to the following provisions) shall proceed with reasonable diligence to perform such restoration (also referred to as the “"Work”"), provided that Mortgagee makes the condemnation awards available therefor. Before commencing the Work Work, Mortgagor shall comply with a the following requirements if the cost in excess of the Loss Threshold, Borrower Work exceeds Three Hundred Thousand Dollars ($300,000):
a. Mortgagor shall obtain the approval of Lender with respect furnish to any Mortgagee complete plans and specifications and any material design or construction contractsfor the Work, for Mortgagee's approval, which approval shall not be unreasonably withheld. Said plans and specifications shall bear the signed approval thereof by an architect reasonably satisfactory to Mortgagee and shall be accompanied by the architect's signed estimate, conditionedbearing the architect's seal, of the entire cost of completing the Work.
b. Mortgagor shall furnish to Mortgagee certified copies of all permits and approvals required by law in connection with the commencement and conduct of the Work.
c. Mortgagor shall furnish to Mortgagee, prior to the commencement of the Work, a surety bond for or guaranty of completion of and payment for the Work, which bond or guaranty shall be in form satisfactory to Mortgagee and shall be signed by a surety or sureties, or delayedguarantor or guarantors, as the case may be, who are reasonably acceptable to Mortgagee, and in an amount not less than the architect's estimate of the entire cost of completing the Work, less the amount of insurance proceeds or condemnation awards, if any, then held by Mortgagee and which Mortgagee shall have elected or shall be required to apply toward restoration of the Security as provided in Section 10 hereof. If the cost of the Work exceeds Three Hundred Thousand Dollars ($300,000), Mortgagor shall not commence any of the Work until Mortgagor shall have complied with the above requirements, and thereafter Borrower Mortgagor shall perform the Work diligently (subject to delays caused by events of force majeure) and in good faith substantially in accordance with the approved plans and specifications and shall cause the lien free completion of such Workreferred to in subsection (a) above. Upon completion of the Work, Borrower shall deliver to Lender a reasonably acceptable survey, architect’s and/or engineer’s certificate, title endorsement, certificate of occupancy, and such other documentation as is reasonably required by Lender. If Lender shall have elected orIf, as provided in Section 13 10 hereof, Mortgagee shall have elected or is required to apply any insurance proceeds or condemnation awards toward repair or restoration of the Site(s)Security, then Borrower so long as the Work is being diligently performed (subject to delays caused by events of force majeure) by Mortgagor in accordance with the provisions of this Mortgage, Mortgagee shall enter into escrow/disburse such insurance proceeds or condemnation awards to Mortgagor from time to time during the course of the Work in accordance with the following provisions which shall be applicable if the cost of the Work exceeds $300,000:
A. The Work shall be in the charge of an experienced construction funding arrangements manager reasonably satisfactory to Lender Mortgagee with the consultation of an architect or engineer, and before Mortgagor commences any Work, Mortgagee shall have approved the plans and specifications for the Work to be submitted by Mortgagor, it being nevertheless understood that, to the extent feasible, said plans and specifications shall provide for such Work that, upon completion thereof, the items being repaired or restored shall be at least equal in value and general utility to their value and general utility prior to the damage, destruction or condemnation;
B. Each request for payment shall not be made more often than at thirty (30) day intervals, on seven (7) business days prior notice to Mortgagee, and shall be accompanied by a certificate from an architect or engineer with respect to items (i) and (iv) and a certificate from Mortgagor with respect to items (ii), (iii), (v) and (vi), dated not more than ten (10) days prior to the application for withdrawal of funds, stating:
(i) that, to the best of its knowledge and belief, based upon diligent performance under its contract with Mortgagor in accordance with generally accepted standards of professional knowledge and skill, all of the Work for which payment is being requested is in place (except for materials stored off-site with Mortgagee's consent, which shall not be unreasonably withheld or delayed) and has been completed substantially in compliance with the approved plans and specifications and all applicable legal requirements;
(ii) that the sum then requested to be withdrawn has been paid by Mortgagor and/or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons (whose names and addresses shall be stated) who have rendered or furnished certain services or materials for the Work and giving a brief description of such services and materials and the principal subdivisions or categories thereof and the respective amounts so paid or due to each of said persons in respect thereof and stating the progress of the Work up to the date of said certificate;
(iii) that the sum then requested to be withdrawn, plus all sums previously withdrawn, does not exceed the cost of the Work insofar as actually accomplished up to the date of such certificate and that the remainder of the monies held by Mortgagee will be sufficient to pay for the completion of the Work in full;
(iv) that, to the best knowledge of such architect or engineer, the remainder of the moneys held by Mortgagee will be sufficient to pay in full for the completion of the Work;
(v) that no part of the cost of the services and materials described in the foregoing paragraph (ii) of this Clause B has been or is being made the basis of the withdrawal of any funds in any previous or then pending application; and
(vi) that, except for the amounts, if any, specified in the foregoing paragraph (ii) of this Clause B to be due for services or materials, there is no outstanding indebtedness known, after due inquiry, which is then due and payable for work, labor, services or materials in connection with the Work which, if unpaid, might become the basis of a vendor's, mechanic's, laborer's or materialman's statutory or other similar lien upon the Security or any part thereof.
C. Mortgagor shall deliver to Mortgagee reasonably satisfactory evidence that the Security and every part thereof, and all materials and all property described in the certificate furnished pursuant to the foregoing Clause B, are free and clear of all mortgages, liens, charges or encumbrances, except (a) encumbrances, if any, securing indebtedness due to persons (whose names and addresses and the several amounts due them shall be stated) specified in said certificate furnished pursuant to the foregoing Clause B, which encumbrances will be discharged upon disbursement of the funds then being requested, and (b) this Mortgage and the other Permitted Encumbrances. Mortgagee shall accept as satisfactory evidence under this Clause C a certificate of a title insurance company acceptable to Mortgagee or an endorsement to Mortgagee's existing loan title policy insuring the lien of this Mortgage, dated as of the date of the making of the disbursement, confirming the foregoing.
D. Prior to the final disbursement, if Mortgagee reasonably requests, Mortgagor shall deliver to Mortgagee a survey of the Security dated as of a date within ten (10) days prior to the making of such disbursement showing no encroachments other than those, if any, shown on the survey delivered to Mortgagee contemporaneously with the execution and delivery of this Mortgage or otherwise acceptable to Mortgagee.
E. Prior to the first disbursement, Mortgagor shall deliver to Mortgagee, to Mortgagee's reasonable satisfaction, an opinion of counsel that the Security, if repaired, replaced and/or rebuilt in accordance with the approved plans and specifications, would comply with all applicable zoning, building, and similar land use laws, rules, and regulations.
F. There exists no uncured monetary default under the Loan Documents and no uncured non-monetary default notice of which has been given by Mortgagee to Mortgagor under any proceedsof the Loan Documents. Mortgagee at its option may waive any of the foregoing requirements. Upon compliance by Mortgagor with the foregoing Clauses A, B, C, D, E and F (except for such requirements, if any, as Mortgagee at its option may have waived), Mortgagor shall, to the extent of the insurance proceeds or condemnation award, if any, which Mortgagee shall have elected or shall be required to apply to restoration of the Security, pay or cause to be paid to the persons named in the certificate furnished pursuant to the foregoing Clause B, the respective amounts stated in said certificate to be due them less a retainage amount of 10% of the total contract price prior to 50% completion of the Work or such other retainage (or without retainage) ("Retainage") as shall be provided for in the applicable contract(s) approved by Mortgagee, which approval shall not be unreasonably withheld; and Mortgagee shall pay to Mortgagor the amounts stated in said certificate to have been paid by Mortgagor less Retainage. Upon completion of the Work, if the cost thereof exceeds Three Hundred Thousand Dollars ($300,000), in addition to the requirements of the foregoing Clauses X, X, X, X, X xxx X, Xxxxxxxxx shall promptly deliver to Mortgagee:
(a) A written certificate of the architect or engineer that the Work has been fully completed in a good and workmanlike manner substantially in accordance with the approved plans and specifications;
(b) An endorsement to Mortgagee's title insurance policy reasonably acceptable to Mortgagee insuring the Security against mechanics' and materialmen's liens;
(c) A certificate by Mortgagor in form and substance reasonably satisfactory to Mortgagee, listing all costs and expenses in connection with the completion of the Work and the amount paid by Mortgagor with respect to the Work; and
(d) A temporary certificate of occupancy and all other applicable certificates, licenses, consents and approvals issued by governmental agencies or authorities with respect to the Security and (if obtainable) by the appropriate Board of Fire Underwriters or other similar bodies acting in and for the locality in which the Security is situated, provided further that within thirty (30) days after completion of the Work, Mortgagor shall obtain and deliver to Mortgagee a permanent certificate of occupancy for the Security or affected portions thereof. Upon receipt of the foregoing items, Mortgagee shall pay any Retainage still held by Mortgagee to Mortgagor. If upon completion of the Work there shall be insurance proceeds or condemnation awards held by Mortgagee over and above the amounts withdrawn pursuant to the foregoing provisions plus undisbursed Retainage, then, if an Event of Default exists, Mortgagee may retain such proceeds or awards and apply the same in reduction of the Indebtedness in whatever order Mortgagee may elect, and if no Event of Default exists, Mortgagee shall pay over such proceeds or awards to Mortgagor.
Appears in 1 contract
Samples: Mortgage, Security Agreement and Fixture Filing (Beacon Properties Corp)
Restoration Following Fire and Other Casualty or Condemnation. In the event of damage to any Site the Security by reason of fire or other hazard or casualty, Borrower Trustor shall give prompt written notice thereof to Lender and Beneficiary, and, so long as Beneficiary provides its consent that any insurance proceeds can be made available as provided in Section 10 hereof, shall proceed with reasonable diligence to perform repair, replacement and/or rebuilding work (hereinafter referred to as the “Work”) to restore the Site(s) Security to its condition prior to such damage in full compliance with all legal requirements; provided, however, in the event that Beneficiary does not provide its consent that any insurance proceeds can be made available, nothing contained herein shall prevent Trustor from using other funds to perform the Work in Trustor’s sole discretion. In the event of a taking by power of eminent domain or conveyance in lieu thereof (a “condemnationCondemnation”), if restoration is feasible as reasonably determined by Borrower and LenderBeneficiary, then Borrower Trustor shall proceed with reasonable diligence to perform such restoration (also referred to herein as the “Work”). Before commencing the Work Work, Trustor shall comply with a cost in excess of the Loss Threshold, Borrower shall obtain the approval of Lender with following requirements:
(a) With respect to any Work reasonably expected to exceed One Million Five Hundred Thousand Dollars ($1,500,000) in cost (“Major Work”), Trustor shall furnish to Beneficiary complete plans and specifications and any material design or construction contractsfor the Work, for Beneficiary’s approval, which approval shall not be unreasonably withheld, conditioned, or delayed, and thereafter Borrower shall perform the Work diligently and in good faith substantially in accordance with the approved . Said plans and specifications shall bear the signed approval thereof by an architect reasonably satisfactory to Beneficiary and shall cause be accompanied by the lien free completion architect’s signed estimate, bearing the architect’s seal, of such the entire cost of completing the Work. Upon , and shall provide that upon completion of the Work, Borrower the Security shall deliver be at least equal in value and general utility to Lender a reasonably acceptable survey, architect’s and/or engineer’s certificate, title endorsement, certificate of occupancy, its value and such other documentation as is reasonably required by Lender. If Lender shall have elected or, as provided in Section 13 hereof, is required to apply any insurance proceeds or condemnation awards toward repair or restoration of the Site(s), then Borrower shall enter into escrow/construction funding arrangements reasonably satisfactory to Lender general utility prior to the disbursement of any proceedsdamage or Condemnation.
Appears in 1 contract
Restoration Following Fire and Other Casualty or Condemnation. In the ------------------------------------------------------------- event of damage to any Site the Security by reason of fire or other hazard or casualty, Borrower Mortgagor shall give prompt written notice thereof to Lender Mortgagee and shall proceed with reasonable diligence to perform repair, replacement and/or rebuilding work (hereinafter referred to as the “"Work”") to restore the Site(s) Security as nearly as practicable to its condition prior to such damage in full compliance with all legal requirements. In the event of a taking by power of eminent domain or conveyance in lieu thereof (“"condemnation”"), if restoration is feasible as reasonably determined by Borrower and LenderMortgagee, then Borrower Mortgagor shall proceed with reasonable diligence to perform such restoration (also referred to as the “"Work”"). Before commencing the Work Work, Mortgagor shall comply with a cost in excess of the Loss Threshold, Borrower following requirements:
(a) Mortgagor shall obtain the approval of Lender with respect furnish to any Mortgagee complete plans and specifications and any material design or construction contractsfor the Work, for Mortgagee's approval, which approval shall not be unreasonably withheld. Said plans and specifications shall bear the signed approval thereof by an architect satisfactory to Mortgagee and shall be accompanied by the architect's signed estimate, conditionedbearing the architect's seal, of the entire cost of completing the Work, and shall provide that upon completion of the Work, the general utility of the Security shall be comparable to its general utility prior to the damage or destruction or condemnation.
(b) Mortgagor shall furnish to Mortgagee certified copies of all permits and approvals required by law in connection with the commencement and conduct of the Work.
(c) Mortgagor shall furnish to Mortgagee, prior to the commencement of the Work, a surety bond for or guaranty of completion of and payment for the Work, which bond or guaranty shall be in form satisfactory to Mortgagee and shall be signed by a surety or sureties, or delayedguarantor or guarantors, as the case may be, who are acceptable to Mortgagee, and in an amount not less than the architect's estimate of the entire cost of completing the Work, less the amount of insurance proceeds or condemnation award, if any, then held by Mortgagee and which Mortgagee shall have elected or shall be required to apply toward restoration of the Security as provided in Section 10 hereof. Mortgagor shall not commence any of the Work until Mortgagor shall have complied with the above requirements, and thereafter Borrower Mortgagor shall perform the Work diligently and in good faith substantially in accordance with the approved plans and specifications and shall cause the lien free completion of such Workreferred to in subsection (a) above. Upon completion of the Work, Borrower shall deliver to Lender a reasonably acceptable survey, architect’s and/or engineer’s certificate, title endorsement, certificate of occupancy, and such other documentation as is reasonably required by Lender. If Lender shall have elected orIf, as provided in Section 13 10 hereof, Mortgagee shall have elected or is required to apply any insurance proceeds or condemnation awards toward repair or restoration of the Site(s)Security, then Borrower so long as the Work is being diligently performed by Mortgagor in accordance with the provisions of this Mortgage, Mortgagee shall enter into escrow/disburse such insurance proceeds or condemnation awards to Mortgagor from time to time during the course of the Work in accordance with the following provisions:
A. The Work shall be in the charge of an experienced construction funding arrangements manager satisfactory to Mortgagee with the consultation of an architect or engineer;
B. Each request for payment shall not be made more often than at thirty (30) day intervals, on ten (10) Business Days (hereinbelow defined) prior notice to Mortgagee, and shall be accompanied by a certificate, reasonably satisfactory to Lender Mortgagee of the architect or engineer, dated not more than ten (10) days prior to the application for withdrawal of funds, stating:
(i) that all of the Work for which payment is being requested is in place and has been completed in compliance with the approved plans and specifications and all applicable legal requirements;
(ii) that the sum then requested to be withdrawn has been paid by Mortgagor and/or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons (whose names and addresses shall be stated) who have rendered or furnished certain services or materials for the Work and giving a brief description of such services and materials and the principal subdivisions or categories thereof and the respective amounts so paid or due to each of said persons in respect thereof and stating the progress of the Work up to the date of said certificate;
(iii) that the sum then requested to be withdrawn, plus all sums previously withdrawn, does not exceed the cost of the Work insofar as actually accomplished up to the date of such certificate;
(iv) that the remainder of the moneys held by Mortgagee will be sufficient to pay in full for the completion of the Work;
(v) that no part of the cost of the services and materials described in the foregoing paragraph (ii) of this Clause B has been or is being made the basis of the withdrawal of any funds in any previous or then pending application; and
(vi) that, except for the amounts, if any, specified in the foregoing paragraph (ii) of this Clause B to be due for services or materials, there is no outstanding indebtedness known, which is then due and payable for work, labor, services or materials in connection with the Work which, if unpaid, might become the basis of a vendor's, mechanic's, laborer's or materialman's statutory or other similar lien upon the Security or any part thereof.
C. Mortgagor shall deliver to Mortgagee satisfactory evidence that the Security and every part thereof, and all materials and all property described in the certificate furnished pursuant to the foregoing Clause B, are free and clear of all mortgages, liens, charges or encumbrances, except (a) encumbrances, if any, securing indebtedness due to persons (whose names and addresses and the several amounts due them shall be stated) specified in said certificate furnished pursuant to the foregoing Clause B, which encumbrances will be discharged upon disbursement of the funds then being requested, and (b) this Mortgage and the Permitted Encumbrances. Mortgagee shall accept as satisfactory evidence under this Clause C a certificate of a title insurance company acceptable to Mortgagee or an endorsement to Mortgagee's existing loan title policy insuring the lien of this Mortgage, dated as of the date of the making of the disbursement, confirming the foregoing.
D. If requested by Mortgagee for the first advance or the final advance, Mortgagor shall deliver to Mortgagee a survey of the Security dated as of a date within ten (10) days prior to the making of the advance (or revised to a date within ten days prior to the advance) showing no encroachments other than those, if any, acceptable to Mortgagee.
E. There shall be no Event of Default under the Note or under any proceedsof the other Loan Documents. Mortgagee at its option may waive any of the foregoing requirements. Upon compliance by Mortgagor with the foregoing Clauses A, B, C, D and E (except for such requirements, if any, as Mortgagee at its option may have waived), Mortgagor shall, to the extent of the insurance proceeds or condemnation award, if any, which Mortgagee shall have elected or shall be required to apply to restoration of the Security, pay or cause to be paid to the persons named in the certificate furnished pursuant to the foregoing Clause B, the respective amounts stated in said certificate to be due them, less ten percent (10%) retainage ("Retainage"), and Mortgagee shall pay to Mortgagor the amounts stated in said certificate to have been paid by Mortgagor, less Retainage. If upon completion of the Work there shall be condemnation awards held by Mortgagee over and above the amounts withdrawn pursuant to the foregoing provisions, plus retainage, then Mortgagee, at Mortgagee's option, may either retain such awards and apply the same in reduction of the Indebtedness in whatever order Mortgagee may elect, or Mortgagee may pay over such awards to Mortgagor. If upon completion of the Work there shall be insurance proceeds held by Mortgagee over and above the amounts withdrawn pursuant to the foregoing provisions, plus retainage, then Mortgagee, shall pay over such proceeds to Mortgagor. Upon completion of the Work, in addition to the requirements of the foregoing Clauses A, B, C, D and E, Mortgagor shall promptly deliver to Mortgagee:
(a) A written certificate of the architect or engineer that the Work has been fully completed in a good and workmanlike manner in accordance with the approved plans and specifications;
(b) A written report and policy of a title insurance company acceptable to Mortgagee insuring the Security against mechanics' and materialmen's liens;
(c) A certificate by Mortgagor in form and substance satisfactory to Mortgagee, listing all costs and expenses in connection with the completion of the Work and the amount paid by Mortgagor with respect to the Work;
(d) A temporary certificate of occupancy and all other applicable certificates, licenses, consents and approvals issued by governmental agencies or authorities with respect to the Security and by the appropriate Board of Fire Underwriters or other similar bodies acting in and for the locality in which the Security is situated, provided that within thirty (30) days after completion of the Work, Mortgagor shall obtain and deliver to Mortgagee a permanent certificate of occupancy for the Security. Upon receipt of the foregoing items, Mortgagee shall pay any Retainage held by Mortgagee for the benefit of Mortgagor. Notwithstanding any other provision contained in Section 8, 9 or 10 hereof and provided that there does not then exist an Event Default, in the event the costs of restoration following any damage by fire or other hazard or casualty shall not exceed $250,000, then the first sentence of this Section 9 and the second sentence of Section 8 hereof shall be applicable but the other requirements of this Article shall be inapplicable, and such insurance proceeds shall be paid to Mortgagor by Mortgagee for application to the cost of the Work; promptly after the completion thereof, Mortgagor shall provide to Mortgagee satisfactory proof that the same has been accomplished and paid for in accordance with all legal requirements.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Hanover Marriott Limited Partnership)
Restoration Following Fire and Other Casualty or Condemnation. In the event of damage to any Site the Security by reason of fire or other hazard or casualty, Borrower Mortgagor shall give prompt written notice thereof to Lender and Mortgagee, and, so long as Mortgagee provides its consent that any insurance proceeds can be made available as provided in Section 10 hereof, shall proceed with reasonable diligence to perform repair, replacement and/or rebuilding work (hereinafter referred to as the “Work”) to restore the Site(s) Security to its condition prior to such damage in full compliance with all legal requirements; provided, however, in the event that Mortgagee does not provide its consent that any insurance proceeds can be made available, nothing contained herein shall prevent Mortgagor from using other funds to perform the Work in Mortgagor’s sole discretion. In the event of a taking by power of eminent domain or conveyance in lieu thereof (a “condemnationCondemnation”), if restoration is feasible as reasonably determined by Borrower and LenderMortgagee, then Borrower Mortgagor shall proceed with reasonable diligence to perform such restoration (also referred to herein as the “Work”). Before commencing the Work Work, Mortgagor shall comply with a cost in excess of the Loss Threshold, Borrower shall obtain the approval of Lender with following requirements:
(a) With respect to any Work reasonably expected to exceed One Million Five Hundred Thousand Dollars ($1,500,000) in cost (“Major Work”), Mortgagor shall furnish to Mortgagee complete plans and specifications and any material design or construction contractsfor the Work, for Mortgagee’s approval, which approval shall not be unreasonably withheld. Said plans and specifications shall bear the signed approval thereof by an architect reasonably satisfactory to Mortgagee and shall be accompanied by the architect’s signed estimate, conditionedbearing the architect’s seal, of the entire cost of completing the Work, and shall provide that upon completion of the Work, the Security shall be at least equal in value and general utility to its value and general utility prior to the damage or Condemnation.
(b) Mortgagor shall furnish to Mortgagee certified copies of all permits and approvals required by law in connection with the commencement and conduct of the Work.
(c) With respect to any Major Work, Mortgagor shall furnish to Mortgagee, prior to the commencement of the Work, a surety bond for or guaranty of timely completion of and payment for the Work, which bond or guaranty shall be in form reasonably satisfactory to Mortgagee and shall be signed by a surety or sureties, or delayedguarantor or guarantors, as the case may be, who are reasonably acceptable to Mortgagee, and in an amount not less than the architect’s estimate of the entire cost of completing the Work, less the amount of insurance proceeds or Condemnation award, if any, then held by Mortgagee and which Mortgagee shall have elected or shall be required to apply toward restoration of the Security as provided in Section 10 hereof. Mortgagor shall not commence any of the Work until Mortgagor shall have complied with the above requirements, and thereafter Borrower Mortgagor shall perform the Work diligently and in good faith substantially in accordance with the plans and specifications referred to in subsection (a) above. If, as provided in Section 10 hereof, Mortgagee shall have elected or is required to apply any insurance proceeds or Condemnation awards toward repair or restoration of the Security, then so long as the Work is being diligently performed by Mortgagor in accordance with the provisions of this Mortgage, Mortgagee shall disburse such insurance proceeds or Condemnation awards to Mortgagor from time to time during the course of the Work in accordance with the following provisions:
A. The Work shall be in the charge of an experienced construction manager reasonably satisfactory to Mortgagee with the consultation of an architect or engineer if the scope of the work so requires (provided, the project property manager shall be acceptable so long as it does not constitute Major Work);
B. Each request for payment shall not be made more often than at thirty (30) day intervals, on ten (10) Business Days (as defined in Section 59 hereinbelow) prior notice to Mortgagee, and shall be accompanied by a certificate reasonably satisfactory to Mortgagee, of the architect or engineer, dated not more than ten (10) days prior to the application for withdrawal of funds, stating:
(i) that all of the Work for which payment is being requested is in place and has been completed in compliance with the approved plans and specifications and all applicable legal requirements;
(ii) that the sum then requested to be withdrawn has been paid by Mortgagor and/or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons (whose names and addresses shall be stated) who have rendered or furnished certain services or materials for the Work and giving a brief description of such services and materials and the principal subdivisions or categories thereof and the respective amounts so paid or due to each of said persons in respect thereof and stating the progress of the Work up to the date of said certificate;
(iii) that the sum requested to be withdrawn, plus all sums previously withdrawn, does not exceed the cost of the Work insofar as actually accomplished up to the date of such certificate;
(iv) that the remainder of the moneys held by Mortgagee will be sufficient to pay in full for the completion of the Work; and
(v) that no part of the cost of the services and materials described in the foregoing paragraph (ii) of this Clause B has been or is being made the basis of the withdrawal of any funds in any previous or then pending application. Mortgagor shall also provide Mortgagee with respect to any Major Work such other evidence as Mortgagee shall reasonably require that: (1) all of the Work for which payment is being requested is in place and has been completed in substantial compliance with all applicable legal requirements; (2) that the sum then requested to be withdrawn, plus all sums previously withdrawn, does not exceed the cost of the Work insofar as actually accomplished up to the date of such certificate; (3) that the remainder of the moneys held by Mortgagee will be sufficient to pay in full for the completion of the Work; (4) that the Work is anticipated to be completed consistent with all requirements, including applicable zoning provisions, pertinent to preserve any and all rights, including, without limitation, with respect to any non-conforming use; and (5) that, except for the amounts, if any, specified in the foregoing paragraph (ii) of this Clause B to be due for services or materials, there is no outstanding indebtedness known, after due inquiry, which is then due and payable for work, labor, services or materials in connection with the Work which, if unpaid, might become the basis of a vendor’s, mechanic’s, laborer’s or materialmen’s statutory or other similar lien upon the Security or any part thereof.
C. Mortgagor shall deliver to Mortgagee reasonably satisfactory evidence that the Security and every part thereof, and all materials and all property described in the certificate furnished pursuant to the foregoing Clause B, are free and clear of all mortgages, liens, charges or encumbrances, except (a) encumbrances, if any, securing indebtedness due to persons (whose names and addresses and the several amounts due them shall be stated) specified in said certificate furnished pursuant to the foregoing Clause B, which encumbrances will be discharged upon disbursement of the funds then being requested, and (b) this Mortgage. Mortgagee shall accept as satisfactory evidence under this Clause C a certificate of a title insurance company acceptable to Mortgagee or an endorsement to Mortgagee’s existing loan title policy insuring the lien of this Mortgage, dated as of the date of the making of the disbursement, confirming the foregoing.
D. If the Work affects the foundation, or changes in the footprint of the Improvements, Mortgagor shall deliver to Mortgagee a survey of the Security dated as of a date within ten (10) days prior to the making of the advance (or revised to a date within ten days prior to the advance) showing no encroachments other than those, if any, acceptable to Mortgagee.
E. There exists no Event of Default, or any state of facts existing which, with the passage of time or the giving of notice, or both, would constitute an Event of Default. Mortgagee at its option may waive any of the foregoing requirements. Upon compliance by Mortgagor with the foregoing Clauses A, B, C, D, and E (except for such requirements, if any, as Mortgagee at its option may have waived), Mortgagor shall, to the extent of the insurance proceeds or Condemnation awards, if any, which Mortgagee shall have elected or shall be required to apply to restoration of the Security, pay or cause to be paid to the persons named in the certificate furnished pursuant to the foregoing Clause B, the respective amounts stated in said certificate to be due them, less ten percent (10%) retainage (“Retainage”), and Mortgagee shall pay to Mortgagor the amounts stated in said certificate to have been paid by Mortgagor, less Retainage. If upon completion of the Work there shall be insurance proceeds or Condemnation awards held by Mortgagee over and above the amounts withdrawn pursuant to the foregoing provisions, plus Retainage, then Mortgagee, at Mortgagee’s option, may either retain such proceeds or awards and apply the same in reduction of the Indebtedness in whatever order Mortgagee may elect (without payment of any prepayment fee or premium with respect to such insurance proceeds or Condemnation awards), or Mortgagee may pay over such proceeds or awards to Mortgagor. Upon completion of the Work, in addition to the requirements of the foregoing Clauses A, B, C, D, and E, Mortgagor shall promptly deliver to Mortgagee:
(1) With respect to Major Work, a written certificate of the construction manager, architect or engineer that the Work has been fully completed in a good and workmanlike manner in accordance with the approved plans and specifications and shall cause with respect to any other Work, a certificate from Mortgagor or its property manager to the lien free same effect;
(2) A written report and policy of a title insurance company reasonably acceptable to Mortgagee insuring the Security against mechanics’ and materialmen’s liens;
(3) A certificate by Mortgagor reasonably satisfactory to Mortgagee in form and substance, listing all costs and expenses in connection with the completion of such the Work and the amount paid by Mortgagor with respect to the Work. Upon ; and
(4) A temporary certificate of occupancy, if required for occupancy of any of the Improvements affected by the Work and all other applicable certificates, licenses, consents and approvals issued by governmental agencies or authorities with respect to the Security and by the appropriate Board of Fire Underwriters or other similar bodies acting in and for the locality in which the Security is situated, provided that within thirty (30) days after completion of the Work, Borrower Mortgagor shall obtain and deliver to Lender Mortgagee a reasonably acceptable survey, architect’s and/or engineer’s certificate, title endorsement, permanent certificate of occupancyoccupancy for the Security, and such other documentation as is reasonably required by Lender. If Lender shall have elected or, as provided in Section 13 hereof, if a certificate of occupancy is required to apply for any insurance proceeds or condemnation awards toward repair or restoration of the Site(s)Improvements affected by the Work. Upon receipt of the foregoing items, then Borrower Mortgagee shall enter into escrow/construction funding arrangements reasonably satisfactory pay any Retainage held by Mortgagee to Lender prior to or for the disbursement benefit of any proceedsMortgagor.
Appears in 1 contract
Restoration Following Fire and Other Casualty or Condemnation. In the event of damage to any Site the Security by reason of fire or other hazard or casualty, Borrower Grantor shall give prompt written notice thereof to Lender and Beneficiary, and, so long as Beneficiary provides its consent that any insurance proceeds can be made available as provided in Section 10 hereof, shall proceed with reasonable diligence to perform repair, replacement and/or rebuilding work (hereinafter referred to as the “Work”) to restore the Site(s) Security to its condition prior to such damage in full compliance with all legal requirements; provided, however, in the event that Beneficiary does not provide its consent that any insurance proceeds can be made available, nothing contained herein shall prevent Grantor from using other funds to perform the Work in Grantor’s sole discretion. In the event of a taking by power of eminent domain or conveyance in lieu thereof (a “condemnationCondemnation”), if restoration is feasible as reasonably determined by Borrower and LenderBeneficiary, then Borrower Grantor shall proceed with reasonable diligence to perform such restoration (also referred to herein as the “Work”). Before commencing the Work Work, Grantor shall comply with a cost in excess of the Loss Threshold, Borrower shall obtain the approval of Lender with following requirements:
(a) With respect to any Work reasonably expected to exceed One Million Five Hundred Thousand Dollars ($1,500,000) in cost (“Major Work”), Grantor shall furnish to Beneficiary complete plans and specifications and any material design or construction contractsfor the Work, for Beneficiary’s approval, which approval shall not be unreasonably withheld. Said plans and specifications shall bear the signed approval thereof by an architect reasonably satisfactory to Beneficiary and shall be accompanied by the architect’s signed estimate, conditionedbearing the architect’s seal, of the entire cost of completing the Work, and shall provide that upon completion of the Work, the Security shall be at least equal in value and general utility to its value and general utility prior to the damage or Condemnation.
(b) Grantor shall furnish to Beneficiary certified copies of all permits and approvals required by law in connection with the commencement and conduct of the Work.
(c) With respect to any Major Work, Grantor shall furnish to Beneficiary, prior to the commencement of the Work, a surety bond for or guaranty of timely completion of and payment for the Work, which bond or guaranty shall be in form reasonably satisfactory to Beneficiary and shall be signed by a surety or sureties, or delayedguarantor or guarantors, as the case may be, who are reasonably acceptable to Beneficiary, and in an amount not less than the architect’s estimate of the entire cost of completing the Work, less the amount of insurance proceeds or Condemnation award, if any, then held by Beneficiary and which Beneficiary shall have elected or shall be required to apply toward restoration of the Security as provided in Section 10 hereof. Grantor shall not commence any of the Work until Grantor shall have complied with the above requirements, and thereafter Borrower Grantor shall perform the Work diligently and in good faith substantially in accordance with the plans and specifications referred to in subsection (a) above. If, as provided in Section 10 hereof, Beneficiary shall have elected or is required to apply any insurance proceeds or Condemnation awards toward repair or restoration of the Security, then so long as the Work is being diligently performed by Grantor in accordance with the provisions of this Deed of Trust, Beneficiary shall disburse such insurance proceeds or Condemnation awards to Grantor from time to time during the course of the Work in accordance with the following provisions:
A. The Work shall be in the charge of an experienced construction manager reasonably satisfactory to Beneficiary with the consultation of an architect or engineer if the scope of the work so requires (provided, the project property manager shall be acceptable so long as it does not constitute Major Work);
B. Each request for payment shall not be made more often than at thirty (30) day intervals, on ten (10) Business Days (as defined in Section 59 hereinbelow) prior notice to Beneficiary, and shall be accompanied by a certificate reasonably satisfactory to Beneficiary, of the architect or engineer, dated not more than ten (10) days prior to the application for withdrawal of funds, stating:
(i) that all of the Work for which payment is being requested is in place and has been completed in compliance with the approved plans and specifications and all applicable legal requirements;
(ii) that the sum then requested to be withdrawn has been paid by Grantor and/or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons (whose names and addresses shall be stated) who have rendered or furnished certain services or materials for the Work and giving a brief description of such services and materials and the principal subdivisions or categories thereof and the respective amounts so paid or due to each of said persons in respect thereof and stating the progress of the Work up to the date of said certificate;
(iii) that the sum requested to be withdrawn, plus all sums previously withdrawn, does not exceed the cost of the Work insofar as actually accomplished up to the date of such certificate;
(iv) that the remainder of the moneys held by Beneficiary will be sufficient to pay in full for the completion of the Work; and
(v) that no part of the cost of the services and materials described in the foregoing paragraph (ii) of this Clause B has been or is being made the basis of the withdrawal of any funds in any previous or then pending application. Grantor shall also provide Beneficiary with respect to any Major Work such other evidence as Beneficiary shall reasonably require that: (1) all of the Work for which payment is being requested is in place and has been completed in substantial compliance with all applicable legal requirements; (2) that the sum then requested to be withdrawn, plus all sums previously withdrawn, does not exceed the cost of the Work insofar as actually accomplished up to the date of such certificate; (3) that the remainder of the moneys held by Beneficiary will be sufficient to pay in full for the completion of the Work; (4) that the Work is anticipated to be completed consistent with all requirements, including applicable zoning provisions, pertinent to preserve any and all rights, including, without limitation, with respect to any non-conforming use; and (5) that, except for the amounts, if any, specified in the foregoing paragraph (ii) of this Clause B to be due for services or materials, there is no outstanding indebtedness known, after due inquiry, which is then due and payable for work, labor, services or materials in connection with the Work which, if unpaid, might become the basis of a vendor’s, mechanic’s, laborer’s or materialmen’s statutory or other similar lien upon the Security or any part thereof.
C. Grantor shall deliver to Beneficiary reasonably satisfactory evidence that the Security and every part thereof, and all materials and all property described in the certificate furnished pursuant to the foregoing Clause B, are free and clear of all mortgages, liens, charges or encumbrances, except (a) encumbrances, if any, securing indebtedness due to persons (whose names and addresses and the several amounts due them shall be stated) specified in said certificate furnished pursuant to the foregoing Clause B, which encumbrances will be discharged upon disbursement of the funds then being requested, and (b) this Deed of Trust. Beneficiary shall accept as satisfactory evidence under this Clause C a certificate of a title insurance company acceptable to Beneficiary or an endorsement to Beneficiary’s existing loan title policy insuring the lien of this Deed of Trust, dated as of the date of the making of the disbursement, confirming the foregoing.
D. If the Work affects the foundation, or changes in the footprint of the Improvements, Grantor shall deliver to Beneficiary a survey of the Security dated as of a date within ten (10) days prior to the making of the advance (or revised to a date within ten days prior to the advance) showing no encroachments other than those, if any, acceptable to Beneficiary.
E. There exists no Event of Default, or any state of facts existing which, with the passage of time or the giving of notice, or both, would constitute an Event of Default. Beneficiary at its option may waive any of the foregoing requirements. Upon compliance by Grantor with the foregoing Clauses A, B, C, D, and E (except for such requirements, if any, as Beneficiary at its option may have waived), Grantor shall, to the extent of the insurance proceeds or Condemnation awards, if any, which Beneficiary shall have elected or shall be required to apply to restoration of the Security, pay or cause to be paid to the persons named in the certificate furnished pursuant to the foregoing Clause B, the respective amounts stated in said certificate to be due them, less ten percent (10%) retainage (“Retainage”), and Beneficiary shall pay to Grantor the amounts stated in said certificate to have been paid by Grantor, less Retainage. If upon completion of the Work there shall be insurance proceeds or Condemnation awards held by Beneficiary over and above the amounts withdrawn pursuant to the foregoing provisions, plus Retainage, then Beneficiary, at Beneficiary’s option, may either retain such proceeds or awards and apply the same in reduction of the Indebtedness in whatever order Beneficiary may elect (without payment of any prepayment fee or premium with respect to such insurance proceeds or Condemnation awards), or Beneficiary may pay over such proceeds or awards to Grantor. Upon completion of the Work, in addition to the requirements of the foregoing Clauses A, B, C, D, and E, Grantor shall promptly deliver to Beneficiary:
(1) With respect to Major Work, a written certificate of the construction manager, architect or engineer that the Work has been fully completed in a good and workmanlike manner in accordance with the approved plans and specifications and shall cause with respect to any other Work, a certificate from Grantor or its property manager to the lien free same effect;
(2) A written report and policy of a title insurance company reasonably acceptable to Beneficiary insuring the Security against mechanics’ and materialmen’s liens;
(3) A certificate by Grantor reasonably satisfactory to Beneficiary in form and substance, listing all costs and expenses in connection with the completion of such the Work and the amount paid by Grantor with respect to the Work. Upon ; and
(4) A temporary certificate of occupancy, if required for occupancy of any of the Improvements affected by the Work and all other applicable certificates, licenses, consents and approvals issued by governmental agencies or authorities with respect to the Security and by the appropriate Board of Fire Underwriters or other similar bodies acting in and for the locality in which the Security is situated, provided that within thirty (30) days after completion of the Work, Borrower Grantor shall obtain and deliver to Lender Beneficiary a reasonably acceptable survey, architect’s and/or engineer’s certificate, title endorsement, permanent certificate of occupancyoccupancy for the Security, and such other documentation as is reasonably required by Lender. If Lender shall have elected or, as provided in Section 13 hereof, if a certificate of occupancy is required to apply for any insurance proceeds or condemnation awards toward repair or restoration of the Site(s)Improvements affected by the Work. Upon receipt of the foregoing items, then Borrower Beneficiary shall enter into escrow/construction funding arrangements reasonably satisfactory pay any Retainage held by Beneficiary to Lender prior to or for the disbursement benefit of any proceedsGrantor.
Appears in 1 contract
Samples: Leasehold Deed of Trust and Security Agreement (Highland Hospitality Corp)
Restoration Following Fire and Other Casualty or Condemnation. In the event of damage to any Site the Security by reason of fire or other hazard or casualty, Borrower shall give prompt written notice thereof to Lender and shall promptly proceed with reasonable diligence to perform repair, replacement and/or rebuilding work (hereinafter referred to as the “Work”) to restore the Site(s) Security to its condition prior to such damage damage, in full compliance with all legal requirements. In the event of a taking by power of eminent domain or conveyance in lieu thereof (each a “condemnationCondemnation”), Borrower shall give prompt written notice thereof to Lender and shall, if restoration is feasible as reasonably determined by Borrower and Lender, then Borrower shall promptly proceed with reasonable diligence to perform such restoration (also referred to as the “Work”). Before commencing the Work with a cost in excess of the Loss Thresholdany Work, Borrower Lender shall obtain the approval of Lender with respect to any have approved (x) all plans and specifications for any proposed restoration or repair, (y) the construction schedule, and any material design (z) the architect’s and general contractor’s contract for all restoration or construction contracts, which approval repair that exceeds $250,000.00 in the aggregate. Borrower shall not be unreasonably withheld, conditioned, or delayedcommence any of the Work until Borrower shall have complied with the above requirements, and thereafter Borrower shall perform the Work diligently and in good faith substantially in accordance with the approved plans and specifications and referred to herein. At Lender’s option, the net insurance proceeds shall cause the lien free completion of such Work. Upon completion of the Work, Borrower shall deliver be disbursed pursuant to Lender a reasonably construction escrow acceptable survey, architect’s and/or engineer’s certificate, title endorsement, certificate of occupancy, and such other documentation as is reasonably required by to Lender. If the above conditions are not satisfied as to application of insurance proceeds, and in any event as to Condemnation awards, Lender shall have elected orapply the same, after first deducting therefrom Lender’s expenses incurred in collecting the same, including but not limited to attorneys’ fees (including costs of paralegals), to the reduction of the Indebtedness, without a Prepayment Fee, or to payment of the restoration, repair, replacement or rebuilding of the Real Property that is damaged or destroyed in such manner as provided in Section 13 hereof, is required to apply any Lender may determine. Any application of insurance proceeds or condemnation awards toward repair Condemnation proceeds shall not extend or restoration postpone the due dates of the Site(s), then Borrower shall enter into escrow/construction funding arrangements reasonably satisfactory to Lender prior to monthly installments of principal and/or interest payable under the disbursement Note or change the amount of any proceedssuch installments.
Appears in 1 contract
Restoration Following Fire and Other Casualty or Condemnation. In the event of damage to any Site the Security by reason of fire or other hazard or casualty, Borrower Grantor shall give prompt written notice thereof to Lender and Beneficiary, and, so long as Beneficiary provides its consent that any insurance proceeds can be made available as provided in Section 10 hereof, shall proceed with reasonable diligence to perform repair, replacement and/or rebuilding work (hereinafter referred to as the “Work”) to restore the Site(s) Security to its condition prior to such damage in full compliance with all legal requirements; provided, however, in the event that Beneficiary does not provide its consent that any insurance proceeds can be made available, nothing contained herein shall prevent Grantor from using other funds to perform the Work in Grantor’s sole discretion. In the event of a taking by power of eminent domain or conveyance in lieu thereof (a “condemnationCondemnation”), if restoration is feasible as reasonably determined by Borrower and LenderBeneficiary, then Borrower Grantor shall proceed with reasonable diligence to perform such restoration (also referred to herein as the “Work”). Before commencing the Work Work, Grantor shall comply with a cost in excess of the Loss Threshold, Borrower shall obtain the approval of Lender with following requirements:
(a) With respect to any Work reasonably expected to exceed One Million Five Hundred Thousand Dollars ($1,500,000) in cost (“Major Work”), Grantor shall furnish to Beneficiary complete plans and specifications and any material design or construction contractsfor the Work, for Beneficiary’s approval, which approval shall not be unreasonably withheld. Said plans and specifications shall bear the signed approval thereof by an architect reasonably satisfactory to Beneficiary and shall be accompanied by the architect’s signed estimate, conditionedbearing the architect’s seal, of the entire cost of completing the Work, and shall provide that upon completion of the Work, the Security shall be at least equal in value and general utility to its value and general utility prior to the damage or Condemnation.
(b) Grantor shall furnish to Beneficiary certified copies of all permits and approvals required by law in connection with the commencement and conduct of the Work.
(c) With respect to any Major Work, Grantor shall furnish to Beneficiary, prior to the commencement of the Work, a surety bond for or guaranty of timely completion of and payment for the Work, which bond or guaranty shall be in form reasonably satisfactory to Beneficiary and shall be signed by a surety or sureties, or delayedguarantor or guarantors, as the case may be, who are reasonably acceptable to Beneficiary, and in an amount not less than the architect’s estimate of the entire cost of completing the Work, less the amount of insurance proceeds or Condemnation award, if any, then held by Beneficiary and which Beneficiary shall have elected or shall be required to apply toward restoration of the Security as provided in Section 10 hereof. Grantor shall not commence any of the Work until Grantor shall have complied with the above requirements, and thereafter Borrower Grantor shall perform the Work diligently and in good faith substantially in accordance with the plans and specifications referred to in subsection (a) above. If, as provided in Section 10 hereof, Beneficiary shall have elected or is required to apply any insurance proceeds or Condemnation awards toward repair or restoration of the Security, then so long as the Work is being diligently performed by Grantor in accordance with the provisions of this Deed of Trust, Beneficiary shall disburse such insurance proceeds or Condemnation awards to Grantor from time to time during the course of the Work in accordance with the following provisions:
A. The Work shall be in the charge of an experienced construction manager reasonably satisfactory to Beneficiary with the consultation of an architect or engineer if the scope of the work so requires (provided, the project property manager shall be acceptable so long as it does not constitute Major Work);
B. Each request for payment shall not be made more often than at thirty (30) day intervals, on ten (10) Business Days (as defined in Section 58 hereinbelow) prior notice to Beneficiary, and shall be accompanied by a certificate reasonably satisfactory to Beneficiary, of the architect or engineer, dated not more than ten (10) days prior to the application for withdrawal of funds, stating:
(i) that all of the Work for which payment is being requested is in place and has been completed in compliance with the approved plans and specifications and all applicable legal requirements;
(ii) that the sum then requested to be withdrawn has been paid by Grantor and/or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons (whose names and addresses shall be stated) who have rendered or furnished certain services or materials for the Work and giving a brief description of such services and materials and the principal subdivisions or categories thereof and the respective amounts so paid or due to each of said persons in respect thereof and stating the progress of the Work up to the date of said certificate;
(iii) that the sum requested to be withdrawn, plus all sums previously withdrawn, does not exceed the cost of the Work insofar as actually accomplished up to the date of such certificate;
(iv) that the remainder of the moneys held by Beneficiary will be sufficient to pay in full for the completion of the Work; and
(v) that no part of the cost of the services and materials described in the foregoing paragraph (ii) of this Clause B has been or is being made the basis of the withdrawal of any funds in any previous or then pending application. Grantor shall also provide Beneficiary with respect to any Major Work such other evidence as Beneficiary shall reasonably require that: (1) all of the Work for which payment is being requested is in place and has been completed in substantial compliance with all applicable legal requirements; (2) that the sum then requested to be withdrawn, plus all sums previously withdrawn, does not exceed the cost of the Work insofar as actually accomplished up to the date of such certificate; (3) that the remainder of the moneys held by Beneficiary will be sufficient to pay in full for the completion of the Work; (4) that the Work is anticipated to be completed consistent with all requirements, including applicable zoning provisions, pertinent to preserve any and all rights, including, without limitation, with respect to any non-conforming use; and (5) that, except for the amounts, if any, specified in the foregoing paragraph (ii) of this Clause B to be due for services or materials, there is no outstanding indebtedness known, after due inquiry, which is then due and payable for work, labor, services or materials in connection with the Work which, if unpaid, might become the basis of a vendor’s, mechanic’s, laborer’s or materialmen’s statutory or other similar lien upon the Security or any part thereof.
C. Grantor shall deliver to Beneficiary reasonably satisfactory evidence that the Security and every part thereof, and all materials and all property described in the certificate furnished pursuant to the foregoing Clause B, are free and clear of all mortgages, liens, charges or encumbrances, except (a) encumbrances, if any, securing indebtedness due to persons (whose names and addresses and the several amounts due them shall be stated) specified in said certificate furnished pursuant to the foregoing Clause B, which encumbrances will be discharged upon disbursement of the funds then being requested, and (b) this Deed of Trust. Beneficiary shall accept as satisfactory evidence under this Clause C a certificate of a title insurance company acceptable to Beneficiary or an endorsement to Beneficiary’s existing loan title policy insuring the lien of this Deed of Trust, dated as of the date of the making of the disbursement, confirming the foregoing.
D. If the Work affects the foundation, or changes in the footprint of the Improvements, Grantor shall deliver to Beneficiary a survey of the Security dated as of a date within ten (10) days prior to the making of the advance (or revised to a date within ten days prior to the advance) showing no encroachments other than those, if any, acceptable to Beneficiary.
E. There exists no Event of Default, or any state of facts existing which, with the passage of time or the giving of notice, or both, would constitute an Event of Default. Beneficiary at its option may waive any of the foregoing requirements. Upon compliance by Grantor with the foregoing Clauses A, B, C, D, and E (except for such requirements, if any, as Beneficiary at its option may have waived), Grantor shall, to the extent of the insurance proceeds or Condemnation awards, if any, which Beneficiary shall have elected or shall be required to apply to restoration of the Security, pay or cause to be paid to the persons named in the certificate furnished pursuant to the foregoing Clause B, the respective amounts stated in said certificate to be due them, less ten percent (10%) retainage (“Retainage”), and Beneficiary shall pay to Grantor the amounts stated in said certificate to have been paid by Grantor, less Retainage. If upon completion of the Work there shall be insurance proceeds or Condemnation awards held by Beneficiary over and above the amounts withdrawn pursuant to the foregoing provisions, plus Retainage, then Beneficiary, at Beneficiary’s option, may either retain such proceeds or awards and apply the same in reduction of the Indebtedness in whatever order Beneficiary may elect (without payment of any prepayment fee or premium with respect to such insurance proceeds or Condemnation awards), or Beneficiary may pay over such proceeds or awards to Grantor. Upon completion of the Work, in addition to the requirements of the foregoing Clauses A, B, C, D, and E, Grantor shall promptly deliver to Beneficiary:
(1) With respect to Major Work, a written certificate of the construction manager, architect or engineer that the Work has been fully completed in a good and workmanlike manner in accordance with the approved plans and specifications and shall cause with respect to any other Work, a certificate from Grantor or its property manager to the lien free same effect;
(2) A written report and policy of a title insurance company reasonably acceptable to Beneficiary insuring the Security against mechanics’ and materialmen’s liens;
(3) A certificate by Grantor reasonably satisfactory to Beneficiary in form and substance, listing all costs and expenses in connection with the completion of such the Work and the amount paid by Grantor with respect to the Work. Upon ; and
(4) A temporary certificate of occupancy, if required for occupancy of any of the Improvements affected by the Work and all other applicable certificates, licenses, consents and approvals issued by governmental agencies or authorities with respect to the Security and by the appropriate Board of Fire Underwriters or other similar bodies acting in and for the locality in which the Security is situated, provided that within thirty (30) days after completion of the Work, Borrower Grantor shall obtain and deliver to Lender Beneficiary a reasonably acceptable survey, architect’s and/or engineer’s certificate, title endorsement, permanent certificate of occupancyoccupancy for the Security, and such other documentation as is reasonably required by Lender. If Lender shall have elected or, as provided in Section 13 hereof, if a certificate of occupancy is required to apply for any insurance proceeds or condemnation awards toward repair or restoration of the Site(s)Improvements affected by the Work. Upon receipt of the foregoing items, then Borrower Beneficiary shall enter into escrow/construction funding arrangements reasonably satisfactory pay any Retainage held by Beneficiary to Lender prior to or for the disbursement benefit of any proceedsGrantor.
Appears in 1 contract
Samples: Deed of Trust and Security Agreement (Highland Hospitality Corp)
Restoration Following Fire and Other Casualty or Condemnation. In the event of damage In
(a) Grantor shall furnish to any Site by reason of fire or other hazard or casualty, Borrower shall give prompt written notice thereof to Lender and shall proceed with reasonable diligence to perform repair, replacement and/or rebuilding work (hereinafter referred to as the “Work”) to restore the Site(s) to its condition prior to such damage in full compliance with all legal requirements. In the event of a taking by power of eminent domain or conveyance in lieu thereof (“condemnation”), if restoration is feasible as reasonably determined by Borrower and Lender, then Borrower shall proceed with reasonable diligence to perform such restoration (also referred to as the “Work”). Before commencing the Work with a cost in excess of the Loss Threshold, Borrower shall obtain the approval of Lender with respect to any Beneficiary complete plans and specifications and any material design or construction contractsfor the Work, for Beneficiary's approval, which approval shall not be unreasonably withheld. Beneficiary shall notify Grantor of such approval or disapproval (and the reasons therefor) or its request for additional information within fifteen (15) business days after the receipt of such plans. Said plans and specifications shall bear the signed approval thereof by an architect satisfactory to Beneficiary and shall be accompanied by the architect's signed estimate, conditionedbearing the architect's seal, of the entire cost of completing the Work. Anything to the contrary provided in this Paragraph (a) notwithstanding, but without limiting any provision or delayedrequirement under other Paragraphs under this Section 9, Beneficiary shall not withhold its approval of any restoration plans that provide for restoration of the Improvements to substantially equivalent condition as existed prior to the applicable casualty.
(b) Grantor shall furnish to Beneficiary certified copies of all permits and approvals required by law in connection with the commencement and conduct of the Work.
(c) If Beneficiary requires, Grantor shall furnish to Grantor shall not commence any of the Work, until Grantor shall have complied with the above requirements, and thereafter Borrower Grantor shall perform the Work diligently and in good faith substantially in accordance with the approved plans and specifications and shall cause the lien free completion of such Workreferred to in subsection (a) above. Upon completion of the Work, Borrower shall deliver to Lender a reasonably acceptable survey, architect’s and/or engineer’s certificate, title endorsement, certificate of occupancy, and such other documentation as is reasonably required by Lender. If Lender shall have elected orIf, as provided in Section 13 10 hereof, Beneficiary shall have elected or is required to apply any insurance proceeds or condemnation awards toward repair or restoration of the Site(s)Security, then Borrower so long as the Work is being diligently performed by Grantor in accordance with the provisions of this Deed of Trust, Beneficiary shall enter into escrow/disburse such insurance proceeds or condemnation awards to Grantor from time to time during the course of the Work in accordance with the following provisions:
A. The Work shall be in the charge of an experienced construction funding arrangements manager or general contractor reasonably satisfactory to Lender prior Beneficiary with the consultation of an architect or engineer;
(i) that all of the Work for which payment is being requested is in place and has been completed in compliance with the approved plans and specifications and all applicable legal requirements;
(ii) that the sum then requested to be withdrawn has been paid by Grantor and/or is justly due to contractors, subcontractors, materialmen, engineers, architects or other persons (whose names and addresses shall be stated) who have rendered or furnished certain services or materials for the Work and giving a brief description of such services and materials and the principal subdivisions or categories thereof and the respective amounts so paid or due to each of said persons in respect thereof and stating the progress of the Work up to the disbursement date of any proceeds.said certificate;
(iii) that the sum then requested to be withdrawn, plus all sums previously withdrawn, does not exceed the cost of the Work insofar as actually accomplished up to the date of such certificate;
(iv) that the remainder of the moneys held by Beneficiary will be sufficient to pay in full for the completion of the Work;
Appears in 1 contract
Samples: Deed of Trust and Security Agreement (Cornerstone Properties Inc)
