Restoration. If there are any Improvements on the Property, the following provisions shall apply: (a) If the Net Proceeds and the costs of completing Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence Restoration in accordance with the terms of this Agreement. (b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 8 contracts
Samples: Loan Agreement (FTE Networks, Inc.), Loan Agreement (FTE Networks, Inc.), Loan Agreement (FTE Networks, Inc.)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, then in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.46.4(b). The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 shall mean: (ix) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (iiy) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds, and (x) less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property;
(C) Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense. The term "RENTABLE SPACE PERCENTAGE" shall mean (x) in the event the Net Proceeds are Insurance Proceeds, a percentage amount equal to fifty percent (50%) and (y) in the event the Net Proceeds are Condemnation Proceeds, a percentage amount equal to fifty percent (50%);
Appears in 7 contracts
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc), Loan Agreement (Inland Western Retail Real Estate Trust Inc), Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, then in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.46.4(b). The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (ix) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (iiy) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 4 contracts
Samples: Loan Agreement (Highlands REIT, Inc.), Loan Agreement (Highlands REIT, Inc.), Loan Agreement (Inland American Real Estate Trust, Inc.)
Restoration. If there are any Improvements on Subject to the Propertyrights of Mortgage Lender and the obligations of Mortgage Borrower under the Mortgage Loan Documents, the following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than $2,500,000 and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property$2,500,000, then the Net Proceeds will be disbursed by Lender to Borrower or Mortgage Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i8.4(b)(i) below and those conditions set forth in Section 8.4(b)(i) of the Mortgage Loan Agreement are each met and Borrower delivers to Lender a written undertaking by Mortgage Borrower to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement and the Mortgage Loan Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, $2,500,000 or the costs of completing the Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property$2,500,000, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.48.4. The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 8.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i8.1(a)(i), (iv), (vi), (ix) and (xvii) as a result of such damage or destructiona Casualty, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting the same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (ii) the net amount of the AwardAward as a result of a Condemnation, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting the same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.
Appears in 4 contracts
Samples: Senior Mezzanine Loan Agreement (Maguire Properties Inc), Mezzanine Loan Agreement (Maguire Properties Inc), Mezzanine Loan Agreement (Maguire Properties Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Restoration Threshold or the costs of completing the Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. 7.4.
(i) The term “Net Proceeds” Proceeds shall be made available for purposes Restoration provided that each of this Section 6.4 the following conditions are met:
(A) no Event of Default shall mean: have occurred and be continuing;
(B) (1) in the event the Net Proceeds are insurance proceeds, less than thirty percent (30%) of each of (i) fair market value of the Property as reasonably determined by Lender, and (ii) rentable area of the Property has been damaged, destroyed or rendered unusable as a result of a Casualty or (2) in the event the Net Proceeds are condemnation proceeds, less than ten percent (10%) of each of (i) the net amount fair market value of all insurance proceeds received the Property as reasonably determined by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount rentable area of the AwardProperty is taken, after deduction such land is located along the perimeter or periphery of Lender’s reasonable costs the Property, no portion of the Improvements is located on such land and expenses such taking does not materially impair the existing access to the Property;
(including, but not limited to, reasonable counsel costs C) Leases demising in the aggregate a percentage amount equal to or greater than 75% of the total rentable space in the Property which has been demised under executed and fees), if any, delivered Leases in collecting same (“Condemnation Proceeds”)effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and Borrower furnishes to Lender evidence satisfactory to Lender that all Tenants under Major Leases shall continue to operate their respective space at the Property after the completion of the Restoration;
(D) Borrower shall commence (or shall cause the commencement of) the Restoration as soon as reasonably practicable (but in no event later than thirty (30) days after the issuance of a building permit with respect thereto) and shall diligently pursue the same to satisfactory completion in compliance with all applicable Legal Requirements, including, without limitation, all applicable Environmental Laws;
(E) Lender shall be satisfied that any operating deficits which will be incurred with respect to the Property as a result of the occurrence of any such fire or other casualty or taking will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 7.1(a)(iii) above, or (3) by other funds of Borrower;
(F) Lender shall be satisfied that the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient to cover the cost of the Restoration;
(G) Lender shall be satisfied that, upon the completion of the Restoration, the fair market value and cash flow of the Property will not be less than the fair market value and cash flow of the Property as the same existed immediately prior to the applicable Casualty or Condemnation;
(H) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases, (3) such time as may be required under applicable Legal Requirements or (4) the expiration of the insurance coverage referred to in Section 7.1(a)(iii) above;
(I) Borrower and Guarantor shall execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender and its counsel pursuant to the provisions of which Borrower and Guarantor shall jointly and severally guaranty to Lender the lien-free completion by Borrower of the Restoration in accordance with the provisions of this Subsection 7.4(b);
(J) the Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal Requirements;
(K) the Restoration shall be done and completed in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements;
(L) intentionally omitted; and
(M) Lender shall be satisfied that making the Net Proceeds available for Restoration shall be permitted pursuant to REMIC Requirements and, in that regard, Lender may require Borrower to deliver a REMIC Opinion in connection therewith.
(ii) The Net Proceeds shall be held by Lender and, until disbursed in accordance with the provisions of this Section 7.4(b), shall constitute additional security for the Debt and other obligations under this Agreement, the Security Instrument, the Note and the other Loan Documents. The Net Proceeds (other than the Rent Loss Proceeds) shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration shall be subject to prior review and acceptance by Lender and the Casualty Consultant. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower. Borrower shall have the right to settle all claims under the Policies jointly with Lender, provided that (a) no Event of Default exists, (b) Borrower promptly and with commercially reasonable diligence negotiates a settlement of any such claims and (c) the insurer with respect to the Policy under which such claim is brought has not raised any act of the insured as a defense to the payment of such claim. If an Event of Default exists, Lender shall, at its election, have the exclusive right to settle or adjust any claims made under the Policies in the event of a Casualty.
(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Restoration Retainage. The term “Restoration Retainage” as used in this Subsection 7.4(b) shall mean an amount equal to 10% of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until such time as the Casualty Consultant certifies to Lender that Net Proceeds representing 50% of the required Restoration have been disbursed. There shall be no Restoration Retainage with respect to costs actually incurred by Borrower for work in place in completing the last 50% of the required Restoration. The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Subsection 7.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Subsection 7.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Restoration Retainage, provided, however, that Lender will release the portion of the Restoration Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, and the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company insuring the lien of the Security Instrument. If required by Lender, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.
Appears in 4 contracts
Samples: Loan Agreement (Independence Realty Trust, Inc), Loan Agreement (Independence Realty Trust, Inc), Loan Agreement (Independence Realty Trust, Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of either Property:
(a) If the Net Proceeds with respect to either Property shall be less than Two Million Five Hundred Thousand and No/100 Dollars ($2,500,000.00) and the costs of completing Restoration of such Property shall each be less than five percent Two Million Five Hundred Thousand and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$2,500,000.00), then the Net Proceeds will be disbursed by Lender to Borrower Borrowers upon receipt, provided provided, that all of the conditions set forth in Section 6.4(b)(i) hereof are met and Borrower delivers Borrowers deliver to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration of such Property in accordance with the terms of this Agreement.
(b) If the Net Proceeds with respect to either Property are equal to or greater than five percent Two Million Five Hundred Thousand and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property$2,500,000.00), or the costs of completing Restoration are of such Property is equal to or greater than five percent Two Million Five Hundred Thousand and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case$2,500,000.00), the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration of such Property in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, including reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Awardany payments received from a Governmental Authority on account of Condemnation or in any transaction or proceeding in lieu thereof, after deduction of Lender’s the reasonable costs and expenses (including, but not limited to, including reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 3 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Properties:
(a) If the Net Proceeds shall be less than Four Million and 00/100 Dollars ($4,000,000) (on an aggregate basis for all of the Properties affected by a Casualty or Condemnation) and the costs of completing the Restoration shall each be less than five percent Four Million and 00/100 Dollars (5%$4,000,000) (on an aggregate basis for all of the applicable Allocated Loan Amount for the Properties affected Individual Propertyby a Casualty or Condemnation), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent Four Million and 00/100 Dollars (5%$4,000,000) (on an aggregate basis for all of the applicable Allocated Loan Amount for the Properties affected Individual Property, but less than twenty percent (20%by a Casualty or Condemnation) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent Four Million and 00/100 Dollars (5%$4,000,000) (on an aggregate basis for all of the applicable Allocated Loan Amount for the Properties affected Individual Propertyby a Casualty or Condemnation), but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xvii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 3 contracts
Samples: Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Collateral Property:
(a) If the Net Proceeds shall be less than $2,000,000 and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property$2,000,000, then the Net Proceeds will be disbursed by Lender directly to Borrower upon receipta Borrower, provided that all of the conditions set forth in Section 6.4(b)(i9.04(c)(i) and (iii) are met and Borrower delivers Borrowers deliver to Lender Administrative Agent a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this AgreementAgreement and a written confirmation of satisfaction of such conditions.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, $2,000,000 or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property$2,000,000, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender Administrative Agent shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.49.04. Notwithstanding the immediately preceding sentence, a portion of the Net Proceeds not to exceed $2,000,000 shall be made available to Borrowers after receipt thereof by Administrative Agent to pay or reimburse a Borrower for any immediate and necessary repair or work required (i) to prevent further damage to the Collateral Property, (ii) to protect life or to provide safety or (iii) to restore hotel operations at the Collateral Property (collectively, the “Emergency Repairs”) provided all the conditions set forth in Sections 9.04(c)(i) and (iii) met and Borrowers deliver to Administrative Agent a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Emergency Repairs in accordance with the terms of this Agreement. The term “Net Proceeds” for purposes of this Section 6.4 shall meanmeans: (iA) the net amount of all insurance proceeds received by Lender Administrative Agent pursuant to Section 6.1 (a)(i9.01(a)(i), (iv), (vi), (ixvii) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (iiB) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 3 contracts
Samples: Revolving Credit Agreement (FelCor Lodging Trust Inc), Revolving Credit Agreement (FelCor Lodging LP), Revolving Credit Agreement (FelCor Lodging Trust Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration (but, for the avoidance of doubt, not the PR Restoration) of any Individual Property:
(a) If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Restoration Threshold or the costs of completing the Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. 7.4.
(i) The term “Net Proceeds” Proceeds shall be made available for purposes Restoration provided that each of this Section 6.4 the following conditions are met:
(A) no Event of Default shall mean: have occurred and be continuing;
(B) (1) in the event the Net Proceeds are insurance proceeds, less than thirty percent (30%) of each of (i) fair market value of the applicable Individual Property as reasonably determined by Lender, and (ii) rentable area of the applicable Individual Property has been damaged, destroyed or rendered unusable as a result of a Casualty or (2) in the event the Net Proceeds are condemnation proceeds, less than ten percent (10%) of each of (i) the net amount fair market value of all insurance proceeds received the applicable Individual Property as reasonably determined by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount rentable area of the Awardapplicable Individual Property is taken, after deduction such land is located along the perimeter or periphery of Lender’s reasonable costs the applicable Individual Property, no portion of the Improvements is located on such land and expenses such taking does not materially impair the existing access to the applicable Individual Property;
(including, but not limited to, reasonable counsel costs C) Leases demising in the aggregate a percentage amount equal to or greater than 75% of the total rentable space in the applicable Individual Property which has been demised under executed and fees), if any, delivered Leases in collecting same (“Condemnation Proceeds”)effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and Borrower furnishes to Lender evidence satisfactory to Lender that all Tenants under Major Leases (at such affected Individual Property) shall continue to operate their respective space at the applicable Individual Property after the completion of the Restoration;
(D) Borrower shall commence (or shall cause the commencement of) the Restoration as soon as reasonably practicable (but in no event later than one hundred twenty (120) days after the issuance of a building permit with respect thereto) and shall diligently pursue the same to satisfactory completion in compliance with all applicable Legal Requirements, including, without limitation, all applicable Environmental Laws, the applicable requirements of the Property Documents, the Ground Lease and the Condominium Documents (if applicable);
(E) Lender shall be satisfied that any operating deficits which will be incurred with respect to the applicable Individual Property as a result of the occurrence of any such fire or other casualty or taking will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 7.1(a)(iii) above, or (3) by other funds of Borrower;
(F) Lender shall be satisfied that the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient to cover the cost of the Restoration;
(G) Lender shall be satisfied that (I) upon the completion of the Restoration, the fair market value and cash flow of the applicable Individual Property will not be less than the fair market value and cash flow of the applicable Individual Property as the same existed immediately prior to the applicable Casualty or Condemnation and (II) Restoration of the Improvements related to such applicable Individual Property on the Land related to such applicable Individual Property (as each existed immediately prior to the applicable casualty or condemnation (with such changes to such Improvements as may be reasonably acceptable to Lender (taking into account subsection (I) above))) is permitted under applicable Legal Requirements and the Property Documents;
(H) Lender shall be reasonably satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases and the Property Documents, (3) such time as may be required under applicable Legal Requirements or (4) the expiration of the insurance coverage referred to in Section 7.1(a)(iii) above;
(I) intentionally omitted;
(J) the applicable Individual Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal Requirements and will be in compliance with the related Ground Lease, Property Documents and Condominium Documents;
(K) intentionally omitted;
(L) the Property Documents, Ground Lease, and the Condominium Documents will remain in full force and effect during and after the Restoration and a Property Document Event shall not occur as a result of the applicable Casualty, Condemnation and/or Restoration; and
(M) If the Loan (or any portion thereof) is included in a REMIC Trust, Lender shall be satisfied that making the Net Proceeds available for Restoration shall be permitted pursuant to REMIC Requirements and, in that regard, Lender may require Borrower to deliver a REMIC Opinion in connection therewith.
(ii) The Net Proceeds shall be held by Lender and, until disbursed in accordance with the provisions of this Section 7.4(b), shall constitute additional security for the Debt and other obligations under this Agreement, the Security Instrument, the Note and the other Loan Documents. The Net Proceeds (other than the Rent Loss Proceeds) shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration shall be subject to prior review and acceptance by Lender and the Casualty Consultant. All out-of-pocket third party costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower. Borrower shall have the right to settle all claims under the Policies jointly with Lender, provided that (a) no Event of Default has occurred and is continuing, (b) Borrower promptly and with commercially reasonable diligence negotiates a settlement of any such claims and (c) the insurer with respect to the Policy under which such claim is brought has not raised any act of the insured as a defense to the payment of such claim, provided that Borrower shall be permitted to settle claims without Lender’s consent so long as the Net Proceeds are less than the Restoration Threshold. Notwithstanding the foregoing, if an Event of Default exists, Lender shall, at its election, have the exclusive right to settle or adjust any claims made under the Policies in the event of a Casualty.
(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Restoration Retainage. The term “Restoration Retainage” as used in this Subsection 7.4(b) shall mean an amount equal to 10% of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until such time as the Casualty Consultant certifies to Lender that Net Proceeds representing 50% of the required Restoration have been disbursed. There shall be no Restoration Retainage with respect to costs actually incurred by Borrower for work in place in completing the last 50% of the required Restoration. The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Subsection 7.4(b), be less than (or duplicative of) the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Subsection 7.4(b) and that all approvals necessary for the re-occupancy and use of the applicable Individual Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence reasonably satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Restoration Retainage, provided, however, that Lender will release the portion of the Restoration Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, and the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company insuring the lien of the Security Instrument or the Pledge Agreement. If required by Lender, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.
Appears in 3 contracts
Samples: Loan Agreement (Retail Value Inc.), Loan Agreement (Retail Value Inc.), Loan Agreement (DDR Corp)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Properties:
(a) If the Net Proceeds shall be less than Four Million and 00/100 Dollars ($4,000,000) (on an aggregate basis for all of the Properties affected by a Casualty or Condemnation) and the costs of completing the Restoration shall each be less than five percent Four Million and 00/100 Dollars (5%$4,000,000) (on an aggregate basis for all of the applicable Allocated Loan Amount for the Properties affected Individual Propertyby a Casualty or Condemnation), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent Four Million and 00/100 Dollars (5%$4,000,000) (on an aggregate basis for all of the applicable Allocated Loan Amount for the Properties affected Individual Property, but less than twenty percent (20%by a Casualty or Condemnation) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent Four Million and 00/100 Dollars (5%$4,000,000) (on an aggregate basis for all of the applicable Allocated Loan Amount for the Properties affected Individual Propertyby a Casualty or Condemnation), but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 "NET PROCEEDS" shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xvii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.
Appears in 3 contracts
Samples: Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than $500,000, Lender shall permit such amount to be paid directly to Borrower and shall waive the requirement for Lender to be named as “loss payee” with respect to such payment. If the Net Proceeds shall be $500,000 or greater, but less than the Availability Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyAvailability Threshold, then the Net Proceeds will shall be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(iSections 6.4(b)(i)(A), (C), (D), (E), (F), (G), (H), and (I) hereof are met and Borrower Bxxxxxxx delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Availability Threshold or the costs of completing the Restoration are equal to or greater than five percent (5%) of the Availability Threshold, and provided that such Restoration is permitted under applicable Allocated Loan Amount for the affected Individual PropertyLegal Requirements, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall meanmeans: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (viix) (excluding in the case of such item (ix), (ixany such insurance proceeds payable to third parties for liability or tort claims) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable out-of-pocket costs and expenses (including, but not limited to, including reasonable out-of-pocket counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable out-of-pocket costs and expenses (including, but not limited to, including reasonable out-of-pocket counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 3 contracts
Samples: Loan Agreement (Global Net Lease, Inc.), Loan Agreement (Necessity Retail REIT, Inc.), Loan Agreement (Healthcare Trust, Inc.)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than the Relevant Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receiptBorrower, provided that all of the conditions set forth in Section 6.4(b)(i) (excluding clauses (E), (F), and (K)) hereof are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i1) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii2) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 3 contracts
Samples: Loan Agreement (Rodin Global Property Trust, Inc.), Loan Agreement (Rodin Global Property Trust, Inc.), Loan Agreement (Rodin Global Property Trust, Inc.)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Restoration Threshold or the costs of completing the Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. 7.4.
(i) The term “Net Proceeds” Proceeds shall be made available for purposes Restoration provided that each of this Section 6.4 the following conditions are met:
(A) no Event of Default shall mean: have occurred and be continuing;
(B) (1) in the event the Net Proceeds are insurance proceeds, less than thirty percent (30%) of each of (i) the net amount fair market value of all insurance proceeds received the applicable Individual Property as reasonably determined by Lender pursuant to Section 6.1 (a)(i)Lender, (iv), (vi), (ix) and (xii) the rentable area of the applicable Individual Property has been damaged, destroyed or rendered unusable as a result of such damage a Casualty or destruction(2) in the event the Net Proceeds are condemnation proceeds, after deduction less than ten percent (10%) of Lender’s reasonable costs each of (i) the fair market value of the applicable Individual Property as reasonably determined by Lender and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount rentable area of the Awardapplicable Individual Property is taken, after deduction such land is located along the perimeter or periphery of Lender’s reasonable costs the applicable Individual Property, no portion of the Improvements is located on such land and expenses such taking does not materially impair the existing access to the applicable Individual Property;
(including, but not limited to, reasonable counsel costs C) Leases demising in the aggregate a percentage amount equal to or greater than 75% of the total rentable space in the applicable Individual Property which has been demised under executed and fees), if any, delivered Leases in collecting same (“Condemnation Proceeds”)effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and Borrower furnishes to Lender evidence satisfactory to Lender that all Tenants under Major Leases shall continue to operate their respective space at the applicable Individual Property after the completion of the Restoration;
(D) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than thirty (30) days after the issuance of a building permit with respect thereto) and shall diligently pursue the same to satisfactory completion in compliance with all Applicable Laws, in all material respects, including, without limitation, all applicable Environmental Laws;
(E) Lender shall be satisfied that any operating deficits which will be incurred with respect to the applicable Individual Property as a result of the occurrence of any such fire or other casualty or taking will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 7.1(a)(iii) above, or (3) by other funds of Borrower;
(F) Lender shall be satisfied that, upon the completion of the Restoration, the fair market value and cash flow of the applicable Individual Property will not be less than the fair market value and cash flow of the applicable Individual Property as the same existed immediately prior to the applicable Casualty or Condemnation;
(G) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) the expiration of the insurance coverage referred to in Section 7.1(a)(iii) above, or (3) such time as may be required under applicable zoning law, ordinance, rule or regulation in order to repair and restore the applicable Individual Property to the condition it was in immediately prior to such fire or other casualty or taking;
(H) Borrower and Guarantor shall execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender and its counsel pursuant to the provisions of which Borrower and Guarantor shall, jointly and severally, guaranty to Lender the lien-free completion by Borrower of the Restoration in accordance with the provisions of this Subsection 7.4(b);
(I) the applicable Individual Property and the use thereof after the Restoration will be in compliance with and permitted under the Property Documents and all Applicable Law;
(J) the Property Documents will remain in full force and effect during and after the Restoration and a Property Document Event shall not occur as a result of the applicable Casualty, Condemnation and/or Restoration; and
(K) the Restoration shall be done and completed in an expeditious and diligent fashion and in compliance with the Property Documents and all Applicable Law.
(ii) The Net Proceeds shall be held by Lender and, until disbursed in accordance with the provisions of this Section 7.4(b), shall constitute additional security for the Debt and other obligations under this Agreement, the Security Instrument, the Note and the other Loan Documents. The Net Proceeds (other than the Rent Loss Proceeds) shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the applicable Individual Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration shall be subject to prior review and acceptance by Lender and the Casualty Consultant. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower. Borrower shall have the right to settle all claims under the Policies jointly with Lender, provided that (a) no Event of Default exists, (b) Borrower promptly and with commercially reasonable diligence negotiates a settlement of any such claims and (c) the insurer with respect to the Policy under which such claim is brought has not raised any act of the insured as a defense to the payment of such claim. If an Event of Default exists, Lender shall, at its election, have the exclusive right to settle or adjust any claims made under the Policies in the event of a Casualty.
(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Restoration Retainage. The term “Restoration Retainage” as used in this Subsection 7.4(b) shall mean an amount equal to 10% of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until such time as the Casualty Consultant certifies to Lender that Net Proceeds representing 50% of the required Restoration have been disbursed. There shall be no Restoration Retainage with respect to costs actually incurred by Borrower for work in place in completing the last 50% of the required Restoration. The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Subsection 7.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Subsection 7.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Restoration Retainage, provided, however, that Lender will release the portion of the Restoration Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, and the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company insuring the lien of the Security Instrument. If required by Lender, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.
Appears in 3 contracts
Samples: Loan Agreement (American Realty Capital Trust III, Inc.), Loan Agreement (American Realty Capital Trust III, Inc.), Loan Agreement (American Realty Capital Trust III, Inc.)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Restoration Threshold or the costs of completing the Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. 7.4.
(i) The term “Net Proceeds” Proceeds shall be made available for purposes Restoration provided that each of this Section 6.4 the following conditions are met:
(A) no Event of Default shall mean: have occurred and be continuing;
(B) (1) in the event the Net Proceeds are insurance proceeds, less than thirty percent (30%) of each of (i) fair market value of the Property as reasonably determined by Lender, and (ii) rentable area of the Property has been damaged, destroyed or rendered unusable as a result of a Casualty or (2) in the event the Net Proceeds are condemnation proceeds, less than ten percent (10%) of each of (i) the net amount fair market value of all insurance proceeds received the Property as reasonably determined by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount rentable area of the AwardProperty is taken, after deduction such land is located along the perimeter or periphery of Lender’s reasonable costs the Property, no portion of the Improvements is located on such land and expenses such taking does not materially impair the existing access to the Property;
(including, but not limited to, reasonable counsel costs C) Leases demising in the aggregate a percentage amount equal to or greater than 65% of the total rentable space in the Property which has been demised under executed and fees), if any, delivered Leases in collecting same (“Condemnation Proceeds”)effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and Borrower furnishes to Lender evidence satisfactory to Lender that all Tenants under Major Leases shall continue to operate their respective space at the Property after the completion of the Restoration;
(D) Borrower shall commence (or shall cause the commencement of) the Restoration as soon as reasonably practicable (but in no event later than thirty (30) days after the issuance of a building permit with respect thereto) and shall diligently pursue the same to satisfactory completion in compliance with all applicable Legal Requirements, including, without limitation, all applicable Environmental Laws, and the applicable requirements of the Property Documents;
(E) Lender shall be satisfied that any operating deficits which will be incurred with respect to the Property as a result of the occurrence of any such fire or other casualty or taking will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 7.1(a)(iii) above, or (3) by other funds of Borrower;
(F) Lender shall be satisfied that the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient to cover the cost of the Restoration;
(G) Lender shall be satisfied that, upon the completion of the Restoration, the fair market value and cash flow of the Property will not be less than the fair market value and cash flow of the Property as the same existed immediately prior to the applicable Casualty or Condemnation;
(H) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) six (6) months after the occurrence of such fire or other casualty or taking, (3) the earliest date required for such completion under the terms of any Leases and the Property Documents, (4) such time as may be required under applicable Legal Requirements or (5) the expiration of the insurance coverage referred to in Section 7.1(a)(iii) above;
(I) Borrower shall execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender and its counsel pursuant to the provisions of which Borrower guaranties to Lender the lien-free completion by Borrower of the Restoration in accordance with the provisions of this Subsection 7.4(b);
(J) the Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal Requirements and the Property Documents;
(K) the Restoration shall be done and completed in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements and the Property Documents;
(L) the Property Documents will remain in full force and effect during and after the Restoration and a Property Document Event shall not occur as a result of the applicable Casualty, Condemnation and/or Restoration; and
(M) Lender shall be satisfied that making the Net Proceeds available for Restoration shall be permitted pursuant to REMIC Requirements and, in that regard, Lender may require Borrower to deliver a REMIC Opinion in connection therewith.
(ii) The Net Proceeds shall be held by Lender and, until disbursed in accordance with the provisions of this Section 7.4(b), shall constitute additional security for the Debt and other obligations under this Agreement, the Security Instrument, the Note and the other Loan Documents. The Net Proceeds (other than the Rent Loss Proceeds) shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration shall be subject to prior review and acceptance by Lender and the Casualty Consultant, such acceptance not to be unreasonably withheld or delayed. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower. Borrower shall have the right to settle all claims under the Policies jointly with Lender, provided that (a) no Event of Default exists, (b) Borrower promptly and with commercially reasonable diligence negotiates a settlement of any such claims and (c) the insurer with respect to the Policy under which such claim is brought has not raised any act of the insured as a defense to the payment of such claim. If an Event of Default exists, Lender shall, at its election, have the exclusive right to settle or adjust any claims made under the Policies in the event of a Casualty.
(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Restoration Retainage. The term “Restoration Retainage” as used in this Subsection 7.4(b) shall mean an amount equal to 10% of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until such time as the Casualty Consultant certifies to Lender that Net Proceeds representing 50% of the required Restoration have been disbursed. There shall be no Restoration Retainage with respect to costs actually incurred by Borrower for work in place in completing the last 50% of the required Restoration. The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Subsection 7.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Subsection 7.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Restoration Retainage, provided, however, that Lender will release the portion of the Restoration Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, and the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company insuring the lien of the Security Instrument. If required by Lender, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.
Appears in 2 contracts
Samples: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds and from an Individual Property, or the costs of completing the Restoration shall each be of such Individual Property, are less than an amount equal to five percent (5%) of the applicable sum of the Allocated Loan Amount for such Individual Property and the affected “Allocated Loan Amounts” under (and as defined in each of) the Mezzanine Loan Agreements for such Individual Property, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds from an Individual Property, or the costs of completing the Restoration of such Individual Property, are equal to or greater than an amount equal to five percent (5%) of the applicable sum of the Allocated Loan Amount for such Individual Property and the affected “Allocated Loan Amounts” under (and as defined in each of) the Mezzanine Loan Agreements for such Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), together with (in each case) interest accruing thereon, whichever the case may be.
Appears in 2 contracts
Samples: Loan Agreement (Harrahs Entertainment Inc), Loan Agreement (Harrahs Entertainment Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to 51 satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, then in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.46.4(b). The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 shall mean: (ix) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (iiy) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds, and (x) less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property;
(C) Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense. The term "RENTABLE SPACE PERCENTAGE" shall mean (x) in the event the Net Proceeds are Insurance Proceeds, a percentage amount equal to fifty percent (50%) and (y) in the event the Net Proceeds are Condemnation Proceeds, a percentage amount equal to fifty percent (50%); 52
Appears in 2 contracts
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc), Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Restoration. If there are any Improvements on the Property, the following provisions shall apply:
(a) If the Net Proceeds (as defined below) shall be less than $75,000 and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property$75,000, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(iSubsection 4.1(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this AgreementSecurity Instrument.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, $75,000 or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property$75,000, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ixSubsection 3.3(a) and (x) of this Security Instrument as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting the same (the “Insurance Net Proceeds”) available for the Restoration in accordance with the provisions of this Subsection 4.1(b), or .
(iii) The Net Proceeds shall be made available to Borrower for the net amount Restoration provided that each of the Awardfollowing conditions are met:
(A) no Event of Default shall have occurred and be continuing under the Note, after deduction the Loan Agreement, this Security Instrument or any of Lender’s reasonable costs and expenses the Other Security Documents;
(including, but not limited to, reasonable counsel costs and fees)B) [intentionally omitted];
(C) Borrower or the tenant subsidiary, if any, will continue to utilize the Property following Restoration and covenants and agrees with Lender to do so (upon the same terms and conditions as existed prior to the fire or other casualty) prior to receipt of the Net Proceeds;
(D) Borrower shall commence the Restoration as soon as reasonably practicable (but in collecting no event later than thirty (30) days after such damage or destruction occurs) and shall diligently pursue the same to satisfactory completion;
(“Condemnation E) Lender shall be satisfied that any operating deficits, which will be incurred with respect to the Property as a result of the occurrence of any such fire or other casualty will be covered out of (1) the Net Proceeds”, or (2) by other funds of Borrower;
(F) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) three (3) months prior to the Maturity Date (as defined in the Loan Agreement) or the Extended Maturity Date (as defined in the Loan Agreement), whichever as the case may be, (2) nine (9) months after the occurrence of such fire or other casualty or (3), such time as may be required under applicable zoning law, ordinance, rule or regulation in order to repair and restore the Property to the condition it was in immediately prior to such fire or other casualty;
(G) Borrower shall execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender and its counsel pursuant to the provisions of which Borrower shall guaranty to Lender the lien-free completion by Borrower of the Restoration in accordance with the provisions of this Subsection 4.1(b);
(H) the Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable zoning laws, ordinances, rules and regulations; and
(I) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable governmental laws, rules and regulations (including, without limitation, all applicable Environmental Laws (as defined below).
(ii) The Net Proceeds shall be held by Lender and, until disbursed in accordance with the provisions of this Subsection 4.1(b), shall constitute additional security for the Obligations. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the Restoration have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property arising out of the Restoration which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company insuring the lien of this Security Instrument.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”), whose fees are to be paid out of Net Proceeds.
(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus an amount equal to 10% of the costs actually incurred for work in place as part of the Restoration.
(v) Lender shall not be obligated to make disbursements of the Net Proceeds more frequently than once every calendar month.
(vi) If at any time the Net Proceeds or the undisbursed balance thereof shall not, in the opinion of Lender, be sufficient to pay in full the balance of the costs which are estimated by the Casualty Consultant to be incurred in connection with the completion of the Restoration, Borrower shall deposit the deficiency (the “Net Proceeds Deficiency”) with Lender before any further disbursement of the Net Proceeds shall be made. The Net Proceeds Deficiency deposited with Lender shall be held by Lender and shall be disbursed for costs actually incurred in connection with the Restoration on the same conditions applicable to the disbursement of the Net Proceeds, and until so disbursed pursuant to this Subsection 4.1(b) shall constitute additional security for the Obligations.
(vii) The excess, if any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender after the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Subsection 4.1(b), and the receipt by Lender of evidence satisfactory to Lender that all costs incurred in connection with the Restoration have been paid in full, shall be remitted by Lender to Borrower, provided no Event of Default shall have occurred and shall be continuing under the Note, the Loan Agreement, this Security Instrument or any of the Other Security Documents.
(c) All Net Proceeds not required hereunder to be made available for the Restoration may be retained and applied by Lender toward the payment of the Debt whether or not then due and payable in such order, priority and proportions as Lender in its discretion shall deem proper. If Lender shall receive and retain Net Proceeds, the lien of this Security Instrument shall be reduced only by the amount thereof received and retained by Lender and actually applied by Lender in reduction of the Debt.
Appears in 2 contracts
Samples: Open End Mortgage and Security Agreement (Griffin Land & Nurseries Inc), Open End Mortgage and Security Agreement (Griffin Land & Nurseries Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Properties:
(a) If the Net Proceeds shall be less than $9,000,000.00 (as the same may be adjusted by increases in CPI in a manner consistent with increases in Base Rent pursuant to the Operating Lease) and the costs of completing the Restoration shall each be less than five percent $9,000,000.00 (5%) of as the applicable Allocated Loan Amount for same may be adjusted by increases in CPI in a manner consistent with increases in Base Rent pursuant to the affected Individual PropertyOperating Lease), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i8.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent $9,000,000.00 (5%as the same may be adjusted by increases in CPI in a manner consistent with increases in Base Rent pursuant to the Operating Lease) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are equal to or greater than five percent $9,000,000.00 (5%) of as the applicable Allocated Loan Amount for same may be adjusted by increases in CPI in a manner consistent with increases in Base Rent pursuant to the affected Individual PropertyOperating Lease), but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.48.4. The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 8.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i8.1(a)(i), (iv), (vi), (ix) and (xix) as a result of such damage or destructiona Casualty, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting the same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (ii) the net amount of the AwardAward as a result of a Condemnation, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting the same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.
Appears in 2 contracts
Samples: Loan Agreement (Corporate Property Associates 15 Inc), Loan Agreement (Corporate Property Associates 16 Global Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with Restoration:
(a) If the Net Proceeds shall be less than One Million and No/100 Dollars ($1,000,000.00) and the costs of completing Restoration shall each be less than five percent One Million and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$1,000,000.00), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided provided, that all of the conditions set forth in Section 6.4(b)(i) hereof are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent One Million and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property$1,000,000.00), or the costs of completing Restoration are is equal to or greater than five percent One Million and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case$1,000,000.00), the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, including reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Awardany payments received from a Governmental Authority on account of Condemnation or in any transaction or proceeding in lieu thereof, after deduction of Lender’s the reasonable costs and expenses (including, but not limited to, including reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 2 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i7.4(b)(i) (other than clause (F) thereof) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Restoration Threshold or the costs of completing the Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: 7.4(b).
(i) The Net Proceeds shall be made available for Restoration provided that each of the net amount following conditions are met:
(A) no Event of all Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are insurance proceeds received by Lender pursuant to Section 6.1 proceeds, less than thirty percent (a)(i)30%) of the rentable area of the Property has been damaged, (iv), (vi), (ix) and (x) destroyed or rendered unusable as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), a Casualty or (ii2) in the net amount event the Net Proceeds are condemnation proceeds, less than ten percent (10%) of the Awardrentable area of the Property is taken, after deduction such land is located along the perimeter or periphery of Lender’s reasonable costs the Property, no portion of the Improvements is located on such land and expenses such taking does not materially impair the existing access to the Property;
(including, but not limited to, reasonable counsel costs C) Leases demising in the aggregate a percentage amount equal to or greater than seventy percent (70%) of the total rentable space in the Property which has been demised under executed and fees), if any, delivered Leases in collecting same (“Condemnation Proceeds”)effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be;
(D) Borrower shall commence (or shall cause the commencement of) the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after the issuance of a building permit with respect thereto) and shall diligently pursue the same to reasonably satisfactory completion in compliance with all applicable Legal Requirements, including, without limitation, all applicable Environmental Laws;
(E) Lender shall be reasonably satisfied that any operating deficits which will be incurred with respect to the Property as a result of the occurrence of any such fire or other casualty or taking will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 7.1(a)(iii) above, or (3) by other funds of Borrower;
(F) Lender shall be reasonably satisfied that the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient to cover the cost of the Restoration;
(G) Lender shall be reasonably satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases, (3) such time as may be required under applicable Legal Requirements or (4) the expiration of the insurance coverage referred to in Section 7.1(a)(iii) above;
(H) the Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal Requirements; and
(I) the Restoration shall be done and completed in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements.
(ii) The Net Proceeds shall be held by Lender and, until disbursed in accordance with the provisions of this Section 7.4(b), shall constitute additional security for the Debt and other obligations under this Agreement, the Security Instrument, the Note and the other Loan Documents. The Net Proceeds (other than the Rent Loss Proceeds) shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence reasonably satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer reasonably selected by Lender (the “Casualty Consultant”), in each case not to be unreasonably withheld, conditioned or delayed. Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors engaged in the Restoration shall be subject to prior review and acceptance by Lender and the Casualty Consultant, in each case not to be unreasonably withheld, conditioned or delayed. All reasonable out-of-pocket costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower. Borrower shall have the right to settle all claims under the Policies jointly with Lender, provided that (a) no Event of Default exists, (b) Borrower promptly and with commercially reasonable diligence negotiates a settlement of any such claims and (c) the insurer with respect to the Policy under which such claim is brought has not raised any act of the insured as a defense to the payment of such claim. If an Event of Default exists, Lender shall, at its election, have the exclusive right to settle or adjust any claims made under the Policies in the event of a Casualty.
(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Restoration Retainage. The term “Restoration Retainage” as used in this Subsection 7.4(b) shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until such time as the Casualty Consultant certifies to Lender that Net Proceeds representing fifty percent (50%) of the required Restoration have been disbursed. There shall be no Restoration Retainage with respect to costs actually incurred by Borrower for work in place in completing the last fifty percent (50%) of the required Restoration. The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Subsection 7.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed (subject only to non-material punch list items) in accordance with the provisions of this Subsection 7.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence reasonably satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Restoration Retainage, provided, however, that Lender will release the portion of the Restoration Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed (subject only to non-material punch list items) all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, and the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company insuring the lien of the Security Instrument. If required by Lender, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.
Appears in 2 contracts
Samples: Loan Agreement (American Realty Capital New York City REIT, Inc.), Loan Agreement (American Realty Capital New York City REIT, Inc.)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all no Event of the conditions set forth in Section 6.4(b)(i) are met Default has occurred and is continuing and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Restoration Threshold or the costs of completing the Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. 7.4(b).
(i) The term “Net Proceeds” Proceeds shall be made available for purposes Restoration provided that each of this Section 6.4 the following conditions are met:
(A) no Event of Default shall mean: have occurred and be continuing;
(B) (1) in the event the Net Proceeds are insurance proceeds, less than thirty percent (30%) of each of (i) fair market value of the applicable Individual Property as reasonably determined by Lender, and (ii) rentable area of the applicable Individual Property has been damaged, destroyed or rendered unusable as a result of a Casualty or (2) in the event the Net Proceeds are condemnation proceeds, less than ten percent (10%) of each of (i) the net amount fair market value of all insurance proceeds received the applicable Individual Property as reasonably determined by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount rentable area of the Awardapplicable Individual Property is taken, after deduction such land is located along the perimeter or periphery of Lender’s reasonable costs the applicable Individual Property, no portion of the Improvements is located on such land and expenses such taking does not materially impair the existing access to the applicable Individual Property;
(including, but not limited to, reasonable counsel costs C) Leases demising in the aggregate a percentage amount equal to or greater than seventy-five percent (75%) of the total rentable space in the applicable Individual Property which has been demised under executed and fees), if any, delivered Leases in collecting same (“Condemnation Proceeds”)effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and Borrower furnishes to Lender evidence satisfactory to Lender that all Tenants under Major Leases shall continue to operate their respective space at the applicable Individual Property after the completion of the Restoration;
(D) Borrower shall commence (or shall cause the commencement of) the Restoration as soon as reasonably practicable (but in no event later than thirty (30) days after the issuance of a building permit with respect thereto) and shall diligently pursue the same to satisfactory completion in compliance with all applicable Legal Requirements, including, without limitation, all applicable Environmental Laws, and the applicable requirements of the Property Documents, the Ground Lease and the PILOT Leases and/or the PILOT Documents, as applicable;
(E) Lender shall be satisfied that any operating deficits which will be incurred with respect to the applicable Individual Property as a result of the occurrence of any such fire or other casualty or taking will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 7.1(a)(iii) above, or (3) by other funds of Borrower;
(F) Lender shall be satisfied that the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient to cover the cost of the Restoration;
(G) Lender shall be satisfied that Restoration of the Improvements related to such applicable Individual Property on the Land related to such applicable Individual Property (as each existed immediately prior to the applicable casualty or condemnation (with such changes to such Improvements as may be reasonably acceptable to Lender (taking into account subsection (I) above)) is permitted under applicable Legal Requirements and the Property Documents, the Ground Lease and the PILOT Leases and/or the PILOT Documents, as applicable;
(H) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) six (6) months after the occurrence of such fire or other casualty or taking, (3) the earliest date required for such completion under the terms of any Leases and the Property Documents, the Ground Lease and the PILOT Leases and/or the PILOT Documents, as applicable, (4) such time as may be required under applicable Legal Requirements or (5) the expiration of the insurance coverage referred to in Section 7.1(a)(iii) above;
(I) Reserved;
(J) the applicable Individual Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal Requirements and the Property Documents, the Ground Lease and the PILOT Leases and/or the PILOT Documents, as applicable;
(K) the Restoration shall be done and completed in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements and the Property Documents, the Ground Lease and the PILOT Leases and/or the PILOT Documents, as applicable;
(L) the Underwritten Net Operating Income with respect to the applicable Individual Property after giving effect to the Restoration, and calculated on a pro forma basis, and, on an “as stabilized” basis, shall be equal to or greater than seventy-five percent (75%) of the Underwritten Net Operating Income with respect to such Individual Property as of the Closing Date;
(M) the Property Documents, the Ground Lease and the PILOT Leases and/or the PILOT Documents, as applicable, will remain in full force and effect during and after the Restoration and a Property Document Event shall not occur as a result of the applicable Casualty, Condemnation and/or Restoration; and
(N) Lender shall be satisfied that making the Net Proceeds available for Restoration shall be permitted pursuant to REMIC Requirements and, in that regard, Lender may require Borrower to deliver a REMIC Opinion in connection therewith.
(ii) The Net Proceeds shall be held by Lxxxxx and, until disbursed in accordance with the provisions of this Section 7.4(b), shall constitute additional security for the Debt and other obligations under this Agreement, the Security Instrument, the Note and the other Loan Documents. The Net Proceeds (other than the Rent Loss Proceeds) shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full (or will be paid from such disbursement), and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lxxxxx and by an independent consulting engineer selected by Lxxxxx (the “Casualty Consultant”). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration shall be subject to prior review and acceptance by Lxxxxx and the Casualty Consultant. All actual costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Bxxxxxxx. Borrower shall have the right to settle all claims under the Policies jointly with Lxxxxx, provided that (a) no Event of Default exists, (b) Borrower promptly and with commercially reasonable diligence negotiates a settlement of any such claims and (c) the insurer with respect to the Policy under which such claim is brought has not raised any act of the insured as a defense to the payment of such claim. If an Event of Default exists, Lender shall, at its election, have the exclusive right to settle or adjust any claims made under the Policies in the event of a Casualty.
(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Restoration Retainage. The term “Restoration Retainage” as used in this Subsection 7.4(b) shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until such time as the Casualty Consultant certifies to Lender that Net Proceeds representing fifty percent (50%) of the required Restoration have been disbursed. There shall be no Restoration Retainage with respect to costs actually incurred by Borrower for work in place in completing the last fifty percent (50%) of the required Restoration. The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Subsection 7.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Subsection 7.4(b) and that all approvals necessary for the re-occupancy and use of the applicable Individual Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Restoration Retainage, provided, however, that Lxxxxx will release the portion of the Restoration Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, and the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lxxxxx or by the title company insuring the lien of the Security Instrument. If required by Lender, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.
Appears in 2 contracts
Samples: Loan Agreement (Industrial Logistics Properties Trust), Loan Agreement (Industrial Logistics Properties Trust)
Restoration. If there are any Improvements on Subject to the Propertyterms of each Anchor Lease (to the extent applicable), the following provisions shall applyapply in connection with any Restoration:
(a) If the Net Proceeds shall be less than Three Hundred Fifty Thousand and No/100 Dollars ($350,000.00) and the costs of completing Restoration shall each be less than five percent Three Hundred Fifty Thousand and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$350,000.00), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent Three Hundred Fifty Thousand and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$350,000.00), but less than twenty percent (20%) of the applicable Allocated original principal balance of the Loan Amount for the affected Individual Property, or the costs of completing Restoration are is equal to or greater than five percent Three Hundred Fifty Thousand and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$350,000.00), but less than twenty percent (20%) of the applicable Allocated Loan Amount for original principal balance of the affected Individual Property, then, in either caseLoan, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 2 contracts
Samples: Loan Agreement (Inland Diversified Real Estate Trust, Inc.), Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than the Casualty/Condemnation Threshold Amount and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyCasualty/Condemnation Threshold Amount, then the Net Proceeds (i) if the same are paid by the insurance company directly to Borrower, may be retained by Borrower or (ii) if the same are paid by the insurance company to Administrative Agent, will be disbursed by Lender Administrative Agent to Borrower upon receipt, provided that all no Event of the conditions set forth in Section 6.4(b)(i) are met Default shall have occurred and be continuing and Borrower delivers to Lender Administrative Agent a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Casualty/Condemnation Threshold Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either caseCasualty/Condemnation Threshold Amount, the Net Proceeds will be held by Lender Administrative Agent and Lender Administrative Agent shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender Administrative Agent pursuant to Sections 6.1(a)(i) through Section 6.1 (a)(i6.1(a)(iv), (iv), (vi), (ixSection 6.1(a)(ix) and (xSection 6.1(a)(xi) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 2 contracts
Samples: Loan Agreement (Excel Trust, L.P.), Loan Agreement (Excel Trust, L.P.)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than $50,000,000 (the “Casualty/Condemnation Threshold Amount”) and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyCasualty/Condemnation Threshold Amount, then the Net Proceeds will be disbursed by Lender to Borrower (or if directed by Borrower, to CPLV Tenant) upon receiptreceipt for Restoration in accordance with the terms hereunder, provided that Borrower certifies to Lender in an Officer’s Certificate that (x) subject to the CPLV Lease SNDA, no Event of Default shall have occurred and be continuing at the time of the disbursement and (y) Borrower will (or will cause CPLV Tenant to) complete the Restoration in compliance with all of the conditions set forth in Section 6.4(b)(i6.4(b)(i)(A), (C), (F), (G) are met (H) and Borrower delivers to Lender a written undertaking (I) hereof and agrees to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement. Borrower shall thereafter commence and complete such Restoration with due diligence in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Casualty/Condemnation Threshold Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Casualty/Condemnation Threshold Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available to Borrower (or if directed by Borrower, CPLV Tenant) for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i6.1(a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable out-of-pocket costs and expenses (including, but not limited to, reasonable outside counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s reasonable out-of-pocket costs and expenses (including, but not limited to, reasonable outside counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement (Vici Properties Inc.)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than 5% of the outstanding principal amount of the Loan (the “Restoration Threshold”) and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in subsections (A), (B), (L), (M) and (N) of Section 6.4(b)(i) hereof are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Restoration Threshold Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i6.1(a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 2 contracts
Samples: Loan Agreement (Procaccianti Hotel Reit, Inc.), Loan Agreement (Procaccianti Hotel Reit, Inc.)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Property:
(a) If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) the Restoration Threshold, provided that no Event of the applicable Allocated Loan Amount for the affected Individual PropertyDefault shall have occurred and be continuing, then the Net Proceeds will be disbursed by Lender to the Borrower owning such Property upon receipt, provided that all of receipt and Borrowers shall diligently proceed to Restore the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence Restoration in accordance with the terms of this Agreementapplicable Property.
(b) If (i) the Net Proceeds are shall be equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or Restoration Threshold and/or the costs of completing the Restoration are shall be equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, but (ii) the Net Proceeds shall be less than twenty percent (20%) the Restoration Value Threshold, provided that no Event of the applicable Allocated Loan Amount for the affected Individual Property, then, in either caseDefault shall have occurred and be continuing, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration of the applicable Property in accordance with the provisions of this Section 6.4, provided that the conditions set forth in Section 6.4(c)(i)(A), (B), (D), (F), (G) and (H) hereof are met.
(c) If (i) the Net Proceeds shall be equal to or greater than the Restoration Threshold and/or the costs of completing the Restoration shall be equal to or greater than the Restoration Threshold, and (ii) the Net Proceeds shall equal or exceed the Restoration Value Threshold, the Net Proceeds shall be held by Lender and Lender shall have the right, in its sole discretion, to (A) apply the Net Proceeds to the Debt in accordance with the provisions of Section 6.4(d) hereof, or (B) make the Net Proceeds available for the Restoration of such Property in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(iSections 6.1(a)(i), (iv), (vi), (ix) and (x) hereof as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 2 contracts
Samples: Loan Agreement (Hard Rock Hotel Holdings, LLC), Loan Agreement (Morgans Hotel Group Co.)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i7.4(b)(i) (other than clause (F) thereof) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Restoration Threshold or the costs of completing the Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. 7.4(b).
(i) The term “Net Proceeds” Proceeds shall be made available for purposes Restoration provided that each of this Section 6.4 the following conditions are met:
(A) no Event of Default shall mean: have occurred and be continuing;
(B) (1) in the event the Net Proceeds are insurance proceeds, less than thirty percent (30%) of each of (i) fair market value of the applicable Individual Property as reasonably determined by Lender, and (ii) rentable area of the applicable Individual Property has been damaged, destroyed or rendered unusable as a result of a Casualty or (2) in the event the Net Proceeds are condemnation proceeds, less than ten percent (10%) of each of (i) the net amount fair market value of all insurance proceeds received the applicable Individual Property as reasonably determined by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount rentable area of the Awardapplicable Individual Property is taken, after deduction such land is located along the perimeter or periphery of Lender’s reasonable costs the applicable Individual Property, no portion of the Improvements is located on such land and expenses such taking does not materially impair the existing access to the applicable Individual Property;
(including, but not limited to, reasonable counsel costs C) Leases demising in the aggregate a percentage amount equal to or greater than 70% of the total rentable space in the applicable Individual Property which has been demised under executed and fees), if any, delivered Leases in collecting same (“Condemnation Proceeds”)effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and Borrower furnishes to Lender evidence reasonably satisfactory to Lender that all Tenants under Major Leases shall continue to operate their respective space at the applicable Individual Property after the completion of the Restoration;
(D) Borrower shall commence (or shall cause the commencement of) the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after the issuance of a building permit with respect thereto) and shall diligently pursue the same to reasonably satisfactory completion in compliance with all applicable Legal Requirements, including, without limitation, all applicable Environmental Laws, and the applicable requirements of the Property Documents and the Ground Leases, if any;
(E) Lender shall be reasonably satisfied that any operating deficits which will be incurred with respect to the applicable Individual Property as a result of the occurrence of any such fire or other casualty or taking will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 7.1(a)(iii) above, or (3) by other funds of Borrower;
(F) Lender shall be reasonably satisfied that the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient to cover the cost of the Restoration;
(G) Lender shall be reasonably satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases, the Ground Leases and the Property Documents, (3) such time as may be required under applicable Legal Requirements or (4) the expiration of the insurance coverage referred to in Section 7.1(a)(iii) above;
(H) the applicable Individual Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal Requirements, the Ground Leases and the Property Documents;
(I) the Restoration shall be done and completed in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements, the Ground Leases and the Property Documents; and
(J) the Ground Leases and the Property Documents will remain in full force and effect during and after the Restoration and a Property Document Event shall not occur as a result of the applicable Casualty, Condemnation and/or Restoration.
(ii) The Net Proceeds shall be held by Lender and, until disbursed in accordance with the provisions of this Section 7.4(b), shall constitute additional security for the Debt and other obligations under this Agreement, the Security Instrument, the Note and the other Loan Documents. The Net Proceeds (other than the Rent Loss Proceeds) shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence reasonably satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer reasonably selected by Lender (the “Casualty Consultant”), in each case not to be unreasonably withheld, conditioned or delayed. Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors engaged in the Restoration shall be subject to prior review and acceptance by Lender and the Casualty Consultant, in each case not to be unreasonably withheld, conditioned or delayed. All reasonable out-of-pocket costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower. Borrower shall have the right to settle all claims under the Policies jointly with Lender, provided that (a) no Event of Default exists, (b) Borrower promptly and with commercially reasonable diligence negotiates a settlement of any such claims and (c) the insurer with respect to the Policy under which such claim is brought has not raised any act of the insured as a defense to the payment of such claim. If an Event of Default exists, Lender shall, at its election, have the exclusive right to settle or adjust any claims made under the Policies in the event of a Casualty.
(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Restoration Retainage. The term “Restoration Retainage” as used in this Subsection 7.4(b) shall mean an amount equal to 10% of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until such time as the Casualty Consultant certifies to Lender that Net Proceeds representing 50% of the required Restoration have been disbursed. There shall be no Restoration Retainage with respect to costs actually incurred by Borrower for work in place in completing the last 50% of the required Restoration. The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Subsection 7.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed (subject only to non-material punch list items) in accordance with the provisions of this Subsection 7.4(b) and that all approvals necessary for the re-occupancy and use of the applicable Individual Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence reasonably satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Restoration Retainage, provided, however, that Lender will release the portion of the Restoration Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed (subject only to non-material punch list items) all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, and the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company insuring the lien of the Security Instrument. If required by Lender, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.
Appears in 2 contracts
Samples: Loan Agreement (American Finance Trust, Inc), Loan Agreement (American Finance Trust, Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of an Individual Property:
(a) If the Net Proceeds and the costs of completing Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Release Amount for the affected applicable Individual Property and the costs of completing the Restoration shall be less than five percent (5%) of the Release Amount for the applicable Individual Property, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) hereof are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Release Amount for the affected applicable Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Property or the costs of completing the Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Release Amount for the affected applicable Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 2 contracts
Samples: Loan Agreement (Cole Credit Property Trust III, Inc.), Loan Agreement (Cole Credit Property Trust III, Inc.)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration:
(a) If the Net Proceeds shall be less than Two Hundred Fifty Thousand Dollars ($250,000) and the costs of completing the Restoration shall each be less than five percent Two Hundred Fifty Thousand Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$250,000), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions precedent set forth in Section 6.4(b)(i) are met satisfied and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent Two Hundred Fifty Thousand Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property$250,000), or the costs of completing the Restoration are is equal to or greater than five percent Two Hundred Fifty Thousand Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case$250,000), the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i6.1(a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 2 contracts
Samples: Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) and the costs of completing the Restoration shall each be less than five percent Two Hundred Fifty Thousand and 00/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$250,000.00), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent Two Hundred Fifty Thousand and 00/100 Dollars (5%$250,000.00) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent Two Hundred Fifty Thousand and 00/100 Dollars (5%$250,000.00) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “"Net Proceeds” for purposes of this Section 6.4 " shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i6.1(a)(i), (iv), (vi), (ixvii) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"Insurance Proceeds”"), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"Condemnation Proceeds”"), whichever the case may be.
Appears in 2 contracts
Samples: Loan Agreement (Felcor Lodging Trust Inc), Loan Agreement (Felcor Lodging Trust Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with any Restoration of the Property which Grantor elects to do:
(a) If the Net Proceeds (as defined in Section 4.2(b)) shall be less than $500,000 (the “Net Proceeds Threshold”) and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyNet Proceeds Threshold, then the Net Proceeds will be disbursed by Lender Beneficiary to Borrower Grantor upon receipt, provided that all of the conditions set forth in Section 6.4(b)(iSubsection 4.1(b)(i) are met and Borrower Grantor delivers to Lender Beneficiary a written undertaking to expeditiously commence and to satisfactorily complete complete, with all due diligence diligence, the Restoration in accordance with the terms of this AgreementSecurity Instrument.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Net Proceeds Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender Threshold, Beneficiary shall make the Net Proceeds available for Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance or condemnation proceeds received by Lender Beneficiary pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) this Security Instrument as a result of such damage damage, destruction or destructioncondemnation, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting the same (the “Insurance Net Proceeds”) available for the Restoration in accordance with the provisions of this Subsection 4.1(b).
(i) The Net Proceeds shall be made available to Grantor for the Restoration, provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) Grantor shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after such damage or destruction occurs) and shall diligently pursue the same to satisfactory completion;
(C) Beneficiary shall be reasonably satisfied that the Net Proceeds and other funds of Grantor are available to complete the Restoration and that the Restoration will be completed on or before the maturity date of the Notes;
(D) the Property and the use thereof after the Restoration will be in compliance in all material respects with and permitted under all applicable zoning laws, ordinances, rules and regulations;
(E) in the event that the Net Proceeds are proceeds of condemnation (I) the portion of the Land that is subject to such condemnation does not include any material means of access, facilities or amenities that are necessary for the continued use, occupation and operation of the Improvements in a manner substantially the same as immediately prior to such condemnation, and (II) the nature and scope of such condemnation would not make it impracticable, in Beneficiary’s reasonable determination, even after Restoration, to use, occupy and operate the Improvements as an economically viable whole; and
(F) the Restoration shall be done and completed by Grantor in an expeditious and diligent fashion and in compliance in all material respects with all applicable governmental laws, rules and regulations.
(ii) The Net Proceeds shall be held by Beneficiary and, until disbursed in accordance with the provisions of this Subsection 4.2(b), shall constitute additional security for the Obligations. The Net Proceeds shall be disbursed by Beneficiary to, or as directed by, Grantor from time to time during the course of the Restoration, upon receipt of evidence reasonably satisfactory to Beneficiary that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the Restoration have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property arising out of the Restoration which have not either been fully bonded to the reasonable satisfaction of Beneficiary and discharged of record, or in the alternative fully insured to the reasonable satisfaction of Beneficiary by the title company insuring the lien of this Security Instrument.
(iii) For any Restoration expected to cost in excess of $2,500,000 (a “Material Restoration”), the plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance by Beneficiary and by an independent consulting engineer selected by Beneficiary (the “Casualty Consultant”), such acceptance not to be unreasonably withheld, conditioned or (ii) delayed. Beneficiary shall have the net amount use of the Awardplans and specifications and all permits, after deduction licenses and approvals required or obtained in connection with the Material Restoration. The identity of Lender’s reasonable the contractors, subcontractors and materialmen engaged in any Material Restoration, as well as the contracts under which they have been engaged, shall be subject to prior review and acceptance by Beneficiary and the Casualty Consultant, not to be unreasonably withheld, conditioned or delayed. All costs and expenses (incurred by Beneficiary in connection with making the Net Proceeds available for the Restoration including, but not limited towithout limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Grantor.
(iv) In no event shall Beneficiary be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus, at the option of Beneficiary, the Casualty Retainage. The term “Casualty Retainage” as used in this Subsection 4.2(b) shall mean an amount equal to 10% of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until such time as the Casualty Consultant certifies to Beneficiary that Net Proceeds representing 50% of the required Restoration have been disbursed. There shall be no Casualty Retainage with respect to costs actually incurred by Grantor for work in place in completing the last 50% of the required Restoration. The Casualty Retainage shall in no event, and feesnotwithstanding anything to the contrary set forth above in this Subsection 4.2(b), if anybe less than the amount actually held back by Grantor from contractors, subcontractors and materialmen engaged in collecting same (“Condemnation Proceeds”)the Restoration. The Casualty Retainage shall not be released until the Casualty Consultant certifies to Beneficiary that the Restoration has been completed in accordance with the provisions of this Subsection 4.2(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate governmental and quasi-governmental authorities, whichever and Beneficiary receives evidence reasonably satisfactory to Beneficiary that the case costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage, provided, however, that Beneficiary will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Beneficiary that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, and the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may bebe reasonably requested by Beneficiary or by the title company insuring the lien of this Security Instrument.
Appears in 2 contracts
Samples: Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Sirius Xm Radio Inc.), Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Sirius Xm Radio Inc.)
Restoration. If there are any Improvements on the Propertythis Lease shall not be terminated pursuant to Section 4.21(b), the following provisions shall apply:
4.21(d) or 4.21(e) and provided that (a) If the Net Proceeds Leased Premises, Building or part thereof, can be lawfully restored to substantially its former condition under applicable zoning, building, and other laws and (b) any first mortgagee with respect to the costs Property shall make the proceeds of completing Restoration insurance or condemnation awards related thereto available for restoration, Landlord shall each be less than five percent thereafter use due diligence to restore the Leased Premises (5%excluding any alterations, additions or improvements made by Tenant) of the applicable Allocated Loan Amount to proper condition for the affected Individual Property, then the Net Proceeds will be disbursed by Lender to Borrower upon receiptTenant's use and occupation, provided that all Landlord's obligation shall be limited to the amount of insurance proceeds actually made available to Landlord therefor. If, for any reason, such restoration shall not be substantially completed within six months after the expiration of the conditions set forth forty five (45) day period referred to in Section 6.4(b)(i4.21(b) are met and Borrower delivers to Lender (which six-month period may be extended for such periods of time as Landlord is prevented from proceeding with or completing such restoration by reason of a written undertaking to expeditiously commence and to satisfactorily complete with due diligence Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to Force Majeure Event or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Propertyany other cause beyond Landlord's reasonable control, but less in no event for more than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(ian additional three months), Tenant shall have the right to terminate this Lease by giving notice to Landlord thereof within thirty (iv), (vi), (ix30) and (x) as a result days after the expiration of such damage period (as so extended). Upon the giving of such notice, this Lease shall cease and come to an end without further liability or destructionobligation on the part of either party unless, after deduction within such 30-day period, Landlord substantially completes such restoration. Such right of Lender’s reasonable costs termination shall be Tenant's sole and expenses (including, but not limited to, reasonable counsel costs and fees), if any, exclusive remedy at law or in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may beequity for Landlord's failure so to complete such restoration.
Appears in 2 contracts
Samples: Lease Agreement (Action Industries Inc), Lease Agreement (Action Industries Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with any Restoration:
(a) If the Net Proceeds for any Property shall be less than ten percent (10%) of the Allocated Loan Amount for such Property and the costs of completing Restoration shall each be less than five ten percent (510%) of the applicable Allocated Loan Amount for the affected Individual such Property, then the Net Proceeds will be disbursed by Lender to the applicable Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and such Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds for any Property are equal to or greater than five ten percent (510%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual such Property, or the costs of completing Restoration are is equal to or greater than five ten percent (510%) of the applicable Allocated Loan Amount for the affected Individual such Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 2 contracts
Samples: Loan Agreement (Cole Credit Property Trust Inc), Loan Agreement (Cole Credit Property Trust III, Inc.)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence diligence, or cause to be expeditiously commenced and satisfactory completed with due diligence, the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i6.1(a)(i), (iv), (vi), (ixvii), (viii) and (xix) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 2 contracts
Samples: Loan Agreement (Cole Credit Property Trust II Inc), Loan Agreement (Spirit Realty Capital, Inc.)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds and from an Individual Property, or the costs of completing the Restoration shall each be of such Individual Property, are less than an amount equal to five percent (5%) of the applicable sum of the Allocated Loan Amount for such Individual Property as of the affected date hereof and the “Allocated Loan Amounts” under (and as defined in each of) the Mezzanine Loan Agreements for such Individual PropertyProperty as of the date hereof, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds from an Individual Property, or the costs of completing the Restoration of such Individual Property, are equal to or greater than an amount equal to five percent (5%) of the applicable sum of the Allocated Loan Amount for the affected such Individual Property, but less than twenty percent (20%) Property as of the applicable date hereof and the “Allocated Loan Amount Amounts” under (and as defined in each of) the Mezzanine Loan Agreements for the affected such Individual Property, or the costs of completing Restoration are equal to or greater than five percent (5%) Property as of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either casedate hereof, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), together with (in each case) interest accruing thereon, whichever the case may be.
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement (Harrahs Entertainment Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) 5.3.1 If the Net Proceeds for such Individual Property shall be less than One Hundred Thousand and No/100 Dollars ($100,000) and the costs of completing the Restoration for such Individual Property shall each be less than five percent One Hundred Thousand and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$100,000), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i5.3(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) 5.3.2 If the Net Proceeds for such Individual Property are equal to or greater than five percent One Hundred Thousand and No/100 Dollars (5%$100,000) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are for such Individual Property is equal to or greater than five percent One Hundred Thousand and No/100 Dollars (5%$100,000) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.45.3. The term “"Net Proceeds” " for purposes of this Section 6.4 5.3 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 5.1 (a)(i), (iv), (vi), (ix) and (xvii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"Insurance Proceeds”"), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"Condemnation Proceeds”"), whichever the case may be.
Appears in 2 contracts
Samples: Loan Agreement (Equity Inns Inc), Loan Agreement (Equity Inns Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i7.4(b)(i) (other than clause (F) thereof) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Restoration Threshold or the costs of completing the Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. 7.4.
(i) The term “Net Proceeds” Proceeds shall be made available for purposes Restoration provided that each of this Section 6.4 the following conditions are met (unless waived by Lender):
(A) no Event of Default shall mean: have occurred and be continuing;
(B) (1) in the event the Net Proceeds are insurance proceeds, less than thirty percent (30%) of each of (i) fair market value of the applicable Individual Property as reasonably determined by Lender, and (ii) rentable area of the applicable Individual Property has been damaged, destroyed or rendered unusable as a result of a Casualty or (2) in the event the Net Proceeds are condemnation proceeds, less than ten percent (10%) of each of (i) the net amount fair market value of all insurance proceeds received the applicable Individual Property as reasonably determined by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount rentable area of the Awardapplicable Individual Property is taken, after deduction such land is located along the perimeter or periphery of Lender’s reasonable costs the applicable Individual Property, no portion of the Improvements is located on such land and expenses such taking does not materially impair the existing access to the applicable Individual Property;
(including, but not limited to, reasonable counsel costs C) Leases demising in the aggregate a percentage amount equal to or greater than 70% of the total rentable space in the applicable Individual Property which has been demised under executed and fees), if any, delivered Leases in collecting same (“Condemnation Proceeds”)effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and Borrower furnishes to Lender evidence satisfactory to Lender that all Tenants under Major Leases shall continue to operate their respective space at the applicable Individual Property after the completion of the Restoration;
(D) Borrower shall commence (or shall cause the commencement of) the Restoration as soon as reasonably practicable (but in no event later than thirty (30) days after the issuance of a building permit with respect thereto) and shall diligently pursue the same to satisfactory completion in compliance with all applicable Legal Requirements, including, without limitation, all applicable Environmental Laws, and the applicable requirements of the Property Documents;
(E) Lender shall be satisfied that any operating deficits which will be incurred with respect to the applicable Individual Property as a result of the occurrence of any such fire or other casualty or taking will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 7.1(a)(iii) above, or (3) by other funds of Borrower (including the other Borrowers);
(F) Lender shall be satisfied that the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient to cover the cost of the Restoration;
(G) Lender shall be satisfied that, upon the completion of the Restoration, the fair market value and cash flow of the applicable Individual Property will not be materially less than the fair market value and cash flow of the applicable Individual Property as the same existed immediately prior to the applicable Casualty or Condemnation;
(H) Lender shall be satisfied that, subject to Force Majeure, the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases and the Property Documents, (3) such time as may be required under applicable Legal Requirements or (4) the expiration of the insurance coverage referred to in Section 7.1(a)(iii) above;
(I) the applicable Individual Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal Requirements and the Property Documents;
(J) the Restoration shall be done and completed in a diligent fashion and in compliance with all applicable Legal Requirements and the Property Documents;
(K) the Property Documents will remain in full force and effect during and after the Restoration and a Property Document Event shall not occur as a result of the applicable Casualty, Condemnation and/or Restoration (unless the failure of this clause (K) to be satisfied does not have a Material Adverse Effect); and
(L) Lender shall be satisfied that making the Net Proceeds available for Restoration shall be permitted pursuant to REMIC Requirements and, in that regard, Lender may require Borrower to deliver a REMIC Opinion in connection therewith; provided, however, Lender shall make the Net Proceeds available for the Restoration in accordance with this Section 7.4(b), provided that Borrower satisfies the terms and conditions of this Section 7.4(b), except that Borrower shall not be required to satisfy the conditions set forth in Section 7.4(b)(i)(B) or (C) hereof if the aggregate Allocated Loan Amounts of such Properties that are or have been subject to a Casualty or Condemnation shall be equal to or less than two percent (2%) of the then outstanding principal balance of the Loan. For the avoidance of doubt, if any Individual Property is subject to the terms of this Section 7.4(b) and its Allocated Loan Amount together with the Allocated Loan Amounts of any other Properties that were subject to a Casualty or Condemnation, in the aggregate, shall exceed two percent (2%) of the outstanding principal balance of the Loan, then Borrower shall be required to satisfy all terms and conditions of this Section 7.4 in order for Lender to make the Net Proceeds available for Restoration.
(ii) The Net Proceeds shall be held by Lender and, until disbursed in accordance with the provisions of this Section 7.4(b), shall constitute additional security for the Debt and other obligations under this Agreement, the Security Instrument, the Note and the other Loan Documents. The Net Proceeds (other than the Rent Loss Proceeds) shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence reasonably satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full (subject to good faith disputes as to amounts owed), and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on any Individual Property (other than Permitted Encumbrances) which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the related Title Insurance Policy.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”), which acceptance shall not be unreasonably withheld. Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration shall be subject to prior review and acceptance by Lender and the Casualty Consultant, which acceptance shall not be unreasonably withheld. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower. Borrower shall have the right to settle all claims under the Policies jointly with Lender, provided that (a) no Event of Default exists, (b) Borrower promptly and with commercially reasonable diligence negotiates a settlement of any such claims and (c) the insurer with respect to the Policy under which such claim is brought has not raised any act of the insured as a defense to the payment of such claim. If an Event of Default exists, Lender shall, at its election, have the exclusive right to settle or adjust any claims made under the Policies in the event of a Casualty.
(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Restoration Retainage. The term “Restoration Retainage” as used in this Subsection 7.4(b) shall mean an amount equal to 10% of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until such time as the Casualty Consultant certifies to Lender that Net Proceeds representing 50% of the required Restoration have been disbursed. There shall be no Restoration Retainage with respect to costs actually incurred by Borrower for work in place in completing the last 50% of the required Restoration. The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Subsection 7.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Casualty Consultant certifies to Lender that on a contractor-by-contractor basis as follows: (a) not more than half of such Restoration Retainage shall be released when the work of such contractor has been completed (subject to punchlist items) and (b) the remaining amount such Restoration Retainage shall be released when such punchlist items have been completed and the applicable contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company insuring the lien of the Security Instrument. If required by Lender, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.
Appears in 2 contracts
Samples: Loan Agreement (Northstar Realty Finance Corp.), Loan Agreement (NorthStar Healthcare Income, Inc.)
Restoration. If there are any Improvements on Notwithstanding the Propertyprovisions of Section 6.1.D above, if, in Lender's reasonable judgment, the following Work can be completed within 18 months of the occurrence of said damage or destruction, then Lender shall, upon request by Borrower, permit Borrower to use the insurance Proceeds for the Work (subject to the provisions shall applyof, and less Lender's costs described in, Section 6.1.F below), so long as Lender, in its reasonable judgment, is satisfied that as of each date on which such insurance Proceeds are to be applied to payment thereof:
(a1) If the Net The insurance Proceeds and the costs of completing Restoration shall each be less than five percent (5%) held by Lender in respect of the applicable Allocated Loan Amount casualty equal or exceed such estimated cost of effecting such repair and restoration, or such portion thereof as then remains to be completed and paid for the affected Individual Property, then the Net Proceeds will be disbursed by Lender to or Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers provides evidence satisfactory to Lender a written undertaking that Borrower has funds available to expeditiously commence and to satisfactorily complete pay any shortfall, and, if required by Lender, escrows such funds with due diligence Restoration Lender for disbursement in accordance with the terms requirements of this Agreement.Section 6.1.F;
(b2) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, The Management Agreement shall remain in either case, the Net Proceeds will be held by Lender full force and Lender shall make the Net Proceeds available for Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of effect and all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees)material Leases, if any, shall remain in collecting full force and effect, and no tenant thereunder shall be entitled to cancel or terminate its Lease as a consequence of such casualty;
(3) Upon completion of the Work, the monthly revenues from the Property shall, in Lender's reasonable judgment, be sufficient to pay all interest and other sums due and payable under the Note, this Agreement and the other Loan Documents;
(4) The Work will, in Lender's reasonable judgment, be completed on or prior to May 31, 2000;
(5) There is in force and effect for the benefit of Borrower and Lender rental or business interruption insurance sufficient to provide coverage for one hundred percent (100%) of all income lost as a consequence of such casualty for not less than the projected period for the completion of the Work or Borrower provides evidence satisfactory to Lender that Borrower has funds available to pay all interest and other sums due and payable under the Note, this Agreement and the other Loan Documents, as well as all other expenses of the Property during such period and, if required by Lender, escrows such funds with Lender for application to the payment of such obligations as they come due;
(6) The Work will be effected pursuant to plans and specifications reasonably approved in writing by Lender, and by a general contractor and major subcontractors, and pursuant to contracts, reasonably approved in writing by Lender; and
(7) The Work can be effected in compliance with all applicable laws and Borrower has obtained all licenses, permits, consents and approvals from all applicable governmental authorities or private parties required to permit Borrower to effect such restoration and repair and to use, operate and occupy the repaired and restored premises upon completion thereof (other than those which will issue in the ordinary course upon completion) and that the same are in full force and effect. Lender shall have no obligation to make such insurance Proceeds available to pay for the Work if (“Insurance Proceeds”)A) the Loan shall have been accelerated and the principal and accrued interest owing on the Loan have become due and payable, or (iiB) the net amount there shall exist an Event of the Award, after deduction of Lender’s reasonable costs Default or Incipient Default other than an Incipient Default which is susceptible to cure and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may beas to which Borrower is diligently pursuing such cure.
Appears in 2 contracts
Samples: Loan Agreement (Servico Market Center Inc), Loan Agreement (Servico Market Center Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of an Individual Property:
(a) If the Net Proceeds and the costs of completing Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided Provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement, the Net Proceeds shall be disbursed by Lender to Borrower upon receipt subject to the prior satisfaction of the requirements set forth in clause (c) below. Borrower hereby covenants and agrees that it shall not waive, pursuant to Section 17.3(d) of the Operating Lease, the requirement that Operating Lessee restore in all circumstances other than a Total Loss (as defined in the applicable Operating Lease).
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 8.04 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i8.01(a)(i), (iv), (vi), (ix) and (xvii) as a result of such damage or destructiona Casualty, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting the same (“Insurance Proceeds”), or (ii) the net amount of the AwardAward as a result of a Condemnation, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting the same (“Condemnation Proceeds”), whichever the case may be.
(c) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) the Operating Lease applicable to the Individual Property that suffered a Casualty or Condemnation shall remain in full force and effect during and after the completion of the Restoration without abatement of rent beyond the time required for Restoration;
(C) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than 90 days after such Casualty or Condemnation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;
(D) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date or (2) such time as may be required under applicable zoning law, ordinance, rule or regulation, or (3) the expiration of the insurance coverage referred to in Section 8.01(a)(iii);
(E) such Individual Property and the use thereof after the Restoration will be in compliance with and permitted under all Legal Requirements;
(F) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements;
(G) such Casualty or Condemnation, as applicable, does not result in the loss of access to such Individual Property or the Improvements; and
(H) the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s reasonable judgment to cover the cost of the Restoration.
Appears in 1 contract
Samples: Loan Agreement (Bon Ton Stores Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, then in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.46.4(b). The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 shall mean: (ix) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (iiy) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds, and (x) less than ten percent (10%) of the land constituting the Property is taken, and such 51 land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property;
(C) Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense. The term "RENTABLE SPACE PERCENTAGE" shall mean (x) in the event the Net Proceeds are Insurance Proceeds, a percentage amount equal to fifty percent (50%) and (y) in the event the Net Proceeds are Condemnation Proceeds, a percentage amount equal to fifty percent (50%);
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Parcel:
(a) If the Net Proceeds shall be less than $250,000 and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property$250,000, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i8.4(b)(i) are met (except for Section 8.1(b)(i)(J)) and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement; provided, however, with respect to the budget delivered to Lender pursuant to Section 8.4(b)(i)(I), such budget is not subject to the prior approval of Lender.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, $250,000 or the costs of completing the Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property$250,000, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.48.4. The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 8.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i8.1(a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destructiona Casualty, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting the same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (ii) the net amount of the AwardAward as a result of a Condemnation, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting the same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.
Appears in 1 contract
Samples: Loan Agreement (Sun Communities Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than an amount equal to four percent (4%) of the Release Amount for the affected Individual Property and the costs of completing the Restoration shall each be less than five an amount equal to four percent (54%) of the applicable Allocated Loan Release Amount for the affected Individual Property, then and provided that the Net Proceeds and the costs of completing the Restorations for all affected Properties are less than Five Million Dollars ($5,000,000), the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) hereof are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If (i) the Net Proceeds are equal to or greater than five an amount equal to four percent (54%) of the applicable Allocated Loan Release Amount for the affected Individual Property, but less Property or the costs of completing the Restoration is equal to or greater than twenty an amount equal to four percent (204%) of the applicable Allocated Loan Release Amount for the affected Individual Property, Property or (ii) the Net Proceeds or the costs of completing Restoration the Restorations for all affected Properties are equal to or greater than five percent Five Million Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$5,000,000), but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (iA) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i6.1(a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for Restoration, provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, less than forty-five percent (45%) of the total floor area of the Improvements on the Individual Property has been damaged, destroyed or rendered unusable as a result of such Casualty or (2) in the event the Net Proceeds are Condemnation Proceeds, less than fifteen percent (15%) of the land constituting the Individual Property is taken, and such land is located along the perimeter or periphery of the Individual Property, and no portion of the Improvements or access to the Individual Property is located on such land;
(C) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than one hundred eighty (180) days after such Casualty or Condemnation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;
(D) Lender shall be satisfied that any operating deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the Individual Property as a result of the occurrence of any such Casualty or Condemnation, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 6.1(a)(ii) hereof, if applicable, or (3) by other funds of Borrower;
(E) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) such time as may be required under all applicable Legal Requirements in order to repair and restore the applicable Individual Property to the condition it was in immediately prior to such Casualty or to as nearly as possible the condition it was in immediately prior to such Condemnation, as applicable, or (3) the expiration of the insurance coverage referred to in Section 6.1(a)(ii) hereof;
(F) the Individual Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal Requirements;
(G) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements;
(H) such Casualty or Condemnation, as applicable, does not result in the loss of access to the Individual Property or the related Improvements;
(I) the Debt Service Coverage Ratio for the affected Individual Property, after giving effect to the Restoration, shall be equal to or greater than 1.20 to 1.0;
(J) Borrower shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget shall be acceptable to Lender; and
(K) the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to cover the cost of the Restoration.
(ii) The Net Proceeds shall be held by Lender in an interest-bearing account and, until disbursed in accordance with the provisions of this Section 6.4(b), shall constitute additional security for the Debt and Other Obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the Restoration have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Individual Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Casualty Consultant. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower.
(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Casualty Retainage. The term “Casualty Retainage” shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until the Restoration has been completed. The Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 6.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Casualty Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 6.4(b) and that all approvals necessary for the re-occupancy and use of the Individual Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage; provided, however, that Lender will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and Lender receives an endorsement to the Title Insurance Policy insuring the continued priority of the lien of the related Mortgage and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Casualty Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of OF the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, then in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.46.4(b). The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 shall mean: (ix) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), "INSURANCE PROCEEDS") or (iiy) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds, and (x) less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property;
(C) Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense. The term "RENTABLE SPACE PERCENTAGE" shall mean (x) in the event the Net Proceeds are Insurance Proceeds, a percentage amount equal to fifty percent (50%) and (y) in the event the Net Proceeds are Condemnation Proceeds, a percentage amount equal to fifty percent (50%);
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Collateral Property:
(a) If the Net Proceeds shall be less than $2,500,000 and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property$2,500,000, then the Net Proceeds will be disbursed by Lender Administrative Agent to a Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i9.04(c)(i) and (iii) are met and Borrower delivers Borrowers deliver to Lender Administrative Agent a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, $2,500,000 or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender $2,500,000 Administrative Agent shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.49.04. Notwithstanding the immediately preceding sentence, a portion of the Net Proceeds not to exceed $2,500,000 shall be made available to Borrowers after receipt thereof by Administrative Agent to pay or reimburse a Borrower for any immediate and necessary repair or work required (i) to prevent further damage to the Collateral Property, (ii) to protect life or to provide safety or (iii) to restore hotel operations at the Collateral Property (collectively, the “Emergency Repairs”) provided all the conditions set forth in Sections 9.04(c)(i) and (iii) met and Borrowers deliver to Administrative Agent a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Emergency Repairs in accordance with the terms of this Agreement. The term “Net Proceeds” for purposes of this Section 6.4 shall meanmeans: (iA) the net amount of all insurance proceeds received by Lender Administrative Agent pursuant to Section 6.1 (a)(i9.01(a)(i), (iv), (vi), (ixvii) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (iiB) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
Samples: Credit Agreement (FelCor Lodging LP)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, then the Net Proceeds will be disbursed by Lender Administrative Agent to Borrower upon receipt, provided that all no Event of the conditions set forth in Section 6.4(b)(i) are met Default has occurred and is continuing and Borrower delivers to Lender Administrative Agent a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Restoration Threshold or the costs of completing the Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender Administrative Agent shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. 7.4(b).
(i) The term “Net Proceeds” Proceeds shall be made available for purposes Restoration provided that each of this Section 6.4 the following conditions are met:
(A) no Event of Default shall mean: have occurred and be continuing;
(B) (1) in the event the Net Proceeds are insurance proceeds, less than thirty percent (30%) of each of (i) fair market value of the applicable Individual Property as reasonably determined by Administrative Agent, and (ii) rentable area of the applicable Individual Property has been damaged, destroyed or rendered unusable as a result of a Casualty or (2) in the event the Net Proceeds are condemnation proceeds, less than ten percent (10%) of each of (i) the net amount fair market value of all insurance proceeds received the applicable Individual Property as reasonably determined by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) Administrative Agent and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount rentable area of the Awardapplicable Individual Property is taken, after deduction such land is located along the perimeter or periphery of Lender’s reasonable costs the applicable Individual Property, no portion of the Improvements is located on such land and expenses such taking does not materially impair the existing access to the applicable Individual Property;
(including, but not limited to, reasonable counsel costs C) Leases demising in the aggregate a percentage amount equal to or greater than seventy-five percent (75%) of the total rentable space in the applicable Individual Property which has been demised under executed and fees), if any, delivered Leases in collecting same (“Condemnation Proceeds”)effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and Borrower furnishes to Administrative Agent evidence satisfactory to Administrative Agent that all Tenants under Major Leases shall continue to operate their respective space at the applicable Individual Property after the completion of the Restoration;
(D) Borrower shall commence (or shall cause the commencement of) the Restoration as soon as reasonably practicable (but in no event later than thirty (30) days after the issuance of a building permit with respect thereto) and shall diligently pursue the same to satisfactory completion in compliance with all applicable Legal Requirements, including, without limitation, all applicable Environmental Laws, and the applicable requirements of the Property Documents, the Ground Lease and the PILOT Leases and/or the PILOT Documents, as applicable;
(E) Administrative Agent shall be satisfied that any operating deficits which will be incurred with respect to the applicable Individual Property as a result of the occurrence of any such fire or other casualty or taking will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 7.1(a)(iii) above, or (3) by other funds of Borrower;
(F) Administrative Agent shall be satisfied that the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Administrative Agent are sufficient to cover the cost of the Restoration;
(G) Administrative Agent shall be satisfied that Restoration of the Improvements related to such applicable Individual Property on the Land related to such applicable Individual Property (as each existed immediately prior to the applicable casualty or condemnation (with such changes to such Improvements as may be reasonably acceptable to Administrative Agent (taking into account subsection (I) above)) is permitted under applicable Legal Requirements and the Property Documents, the Ground Lease and the PILOT Leases and/or the PILOT Documents, as applicable;
(H) Administrative Agent shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) six (6) months after the occurrence of such fire or other casualty or taking, (3) the earliest date required for such completion under the terms of any Leases and the Property Documents, the Ground Lease and the PILOT Leases and/or the PILOT Documents, as applicable, (4) such time as may be required under applicable Legal Requirements or (5) the expiration of the insurance coverage referred to in Section 7.1(a)(iii) above;
(I) Reserved;
(J) the applicable Individual Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal Requirements and the Property Documents, the Ground Lease and the PI PILOT Leases and/or the PILOT Documents, as applicable;
(K) the Restoration shall be done and completed in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements and the Property Documents, the Ground Lease and the PILOT Leases and/or the PILOT Documents, as applicable;
(L) the Underwritten Net Operating Income with respect to the applicable Individual Property after giving effect to the Restoration, and calculated on a pro forma basis, and, on an “as stabilized” basis, shall be equal to or greater than seventy-five percent (75%) of the Underwritten Net Operating Income with respect to such Individual Property as of the Closing Date;
(M) the Property Documents, the Ground Lease and the PILOT Leases and/or the PILOT Documents, as applicable, will remain in full force and effect during and after the Restoration and a Property Document Event shall not occur as a result of the applicable Casualty, Condemnation and/or Restoration; and
(N) Administrative Agent shall be satisfied that making the Net Proceeds available for Restoration shall be permitted pursuant to REMIC Requirements and, in that regard, Administrative Agent may require Borrower to deliver a REMIC Opinion in connection therewith.
(ii) The Net Proceeds shall be held by Administrative Agent and, until disbursed in accordance with the provisions of this Section 7.4(b), shall constitute additional security for the Debt and other obligations under this Agreement, the Security Instrument, the Note and the other Loan Documents. The Net Proceeds (other than the Rent Loss Proceeds) shall be disbursed by Administrative Agent to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Administrative Agent that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full (or will be paid from such disbursement), and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Administrative Agent and discharged of record or in the alternative fully insured to the satisfaction of Administrative Agent by the title company issuing the Title Insurance Policy.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Administrative Agent and by an independent consulting engineer selected by Administrative Agent (the “Casualty Consultant”). Administrative Agent shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration shall be subject to prior review and acceptance by Administrative Agent and the Casualty Consultant. All actual costs and expenses incurred by Administrative Agent in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower. Borrower shall have the right to settle all claims under the Policies jointly with Administrative Agent, provided that (a) no Event of Default exists, (b) Borrower promptly and with commercially reasonable diligence negotiates a settlement of any such claims and (c) the insurer with respect to the Policy under which such claim is brought has not raised any act of the insured as a defense to the payment of such claim. If an Event of Default exists, Administrative Agent shall, at its election, have the exclusive right to settle or adjust any claims made under the Policies in the event of a Casualty.
(iv) In no event shall Administrative Agent be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Restoration Retainage. The term “Restoration Retainage” as used in this Subsection 7.4(b) shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until such time as the Casualty Consultant certifies to Administrative Agent that Net Proceeds representing fifty percent (50%) of the required Restoration have been disbursed. There shall be no Restoration Retainage with respect to costs actually incurred by Borrower for work in place in completing the last fifty percent (50%) of the required Restoration. The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Subsection 7.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Casualty Consultant certifies to Administrative Agent that the Restoration has been completed in accordance with the provisions of this Subsection 7.4(b) and that all approvals necessary for the re-occupancy and use of the applicable Individual Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Administrative Agent receives evidence satisfactory to Administrative Agent that the costs of the Restoration have been paid in full or will be paid in full out of the Restoration Retainage, provided, however, that Administrative Agent will release the portion of the Restoration Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Administrative Agent that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, and the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Administrative Agent or by the title company insuring the lien of the Security Instrument. If required by Administrative Agent, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.
Appears in 1 contract
Samples: Loan Agreement (Industrial Logistics Properties Trust)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than the Individual Property Casualty/Condemnation Threshold Amount and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyCasualty/Condemnation Threshold Amount, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) (A), (C), (F), (G) and (H) hereof are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Casualty/Condemnation Threshold Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Casualty/Condemnation Threshold Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i6.1(a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s the reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s the reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration:
(a) If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i5.4{b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either caseRestoration Threshold, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.45.4. The term “"Net Proceeds” " for purposes of this Section 6.4 5.4 shall mean: :
(i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i5.1.1(a)(i), (iv), and (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"Insurance Proceeds”"), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"Condemnation Proceeds”"), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for Restoration upon the approval of Lender in its sole discretion that the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such Casualty or (2) in the event the Net Proceeds are Condemnation Proceeds, less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land;
(C) Leases demising in the aggregate a percentage amount equal to or greater than seventy-five percent (75%) of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such Casualty or Condemnation, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration without abatement of rent beyond the time required for Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense;
(D) Borrower shall commence the Restoration (including application of necessary licenses or permits) as soon as reasonably practicable (but in no event later than ninety (90) days after such Casualty or Condemnation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;
(E) Lender shall be satisfied that any operating deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the Property as a result of the occurrence of any such Casualty or Condemnation, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 5.1.l{a)(iii), if applicable, or (3) by other funds of Borrower;
(F) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) the date six (6) months prior to the Stated Maturity Date, (2) the earliest date required for such completion under the terms of any Lease, if any Leases are in place at the Property, (3) such time as may be required under applicable Legal Requirements or (4) the expiration of the insurance coverage referred to in Section 5.1.1{a){iii);
(G) the Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal Requirements;
(H) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements;
(I) such Casualty or Condemnation, as applicable, does not result in the loss of access to the Property or the related Improvements;
(J) the Restoration DSCR, after giving effect to the Restoration, shall be equal to or greater than 1.75 to 1.00;
(K) the Loan to Value Ratio after giving effect to the Restoration, shall be equal to or less than sixty-five percent (65%);
(L) Borrower shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by Borrower's architect or engineer stating the entire cost of completing the Restoration, which budget shall be acceptable to Lender; and
(M) the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender's discretion to cover the cost of the Restoration.
(ii) The Net Proceeds shall be held by Lender in the Casualty and Condemnation Account and, until disbursed in accordance with the provisions of this Section 5.4{b), shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that
(A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the Restoration have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic's or materialman's liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.
(i) All plans and specifications required in connection with the Restoration shall be subject to the prior approval of Lender and an independent consulting engineer selected by Lender (the "Casualty Consultant"). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts under which they have been engaged, shall be subject to the approval of Lender and the Casualty Consultant. All costs and expenses incurred by Lender in connection with recovering, holding and advancing the Net Proceeds for the Restoration including, without limitation, reasonable attorneys' fees and disbursements and the Casualty Consultant's fees and disbursements, shall be paid by Borrower.
(ii) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, less the Casualty Retainage. The term "Casualty Retainage" shall mean, as to each contractor, subcontractor or materialman engaged in the Restoration, an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until the Restoration has been completed. The Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 5.4(b). be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Casualty Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 5.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate Governmental Authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage; provided, however, that Lender will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which (i) the Casualty Consultant certifies to Lender that such contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of such contractor's, subcontractor's or materialman's contract, (ii) the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and (iii) Lender receives an endorsement to the Title Insurance Policy insuring the continued priority of the Lien of the Mortgage and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Casualty Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.
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Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with any Restoration:
(a) If the Net Proceeds shall be less than the Net Proceeds Threshold Amount and the costs of completing Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyNet Proceeds Threshold Amount, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyNet Proceeds Threshold Amount, but less than twenty percent (20%) of the applicable original principal balance of the Allocated Loan Amount for the affected Individual Property, Property or the costs of completing Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyNet Proceeds Threshold Amount, but less than twenty percent (20%) of the applicable original principal balance of the Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
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Restoration. If there are any Improvements on Lender shall, and Borrower shall cause the PropertyOwner Parties to, comply with the following provisions shall applyin connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than $2,500,000.00 and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property$2,500,000.00, then the Net Proceeds will be disbursed by Lender to Borrower the Owner Parties upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers the Owner Parties deliver to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, $2,500,000.00 or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property$2,500,000.00, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i6.1(a)(i), (iv), (vi), (ixvii), (viii) and (xix) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
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Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds and the costs of completing Restoration shall each be less than five percent (5%) of the applicable Allocated outstanding principal balance of the Loan Amount for and the affected Individual Propertycosts of completing the Restoration shall be less than five percent (5%) of the outstanding principal balance of the Loan, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i8.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) outstanding principal balance of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) outstanding principal balance of the applicable Allocated Loan Amount for the affected Individual PropertyLoan, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.48.4. The term “"Net Proceeds” " for purposes of this Section 6.4 8.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i8.1(a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destructiona Casualty, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting the same (“"Insurance Proceeds”"), or (ii) the net amount of the AwardAward as a result of a Condemnation, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting the same (“"Condemnation Proceeds”"), whichever the case may be.
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Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than $100,000 and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property$100,000, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(iSubsection 4.4(b)(i) are met and Borrower delivers to Lender (i) a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this AgreementSecurity Instrument and (ii) a monthly accounting of all payments, costs and expenditures made by Borrower in connection with the Restoration.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, $100,000 or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and $100,000 Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4Subsection 4.4(b). The term “"Net Proceeds” " for purposes of this Section 6.4 4.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(iSubsections 3.3(a)(i), (iv), (vi), (ix) and (xvii) of this Security Instrument as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"Insurance Proceeds”"), or (ii) the net amount of the Awardall awards and payments received by Lender with respect to a taking referenced in Section 3.6 of this Security Instrument, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting the same (“"Condemnation Proceeds”"), whichever the case may be.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with any Restoration:
(a) If the Net Proceeds shall be less than the Net Proceeds Threshold Amount and the costs of completing Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyNet Proceeds Threshold Amount, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyNet Proceeds Threshold Amount, but less than twenty percent (20%) of the applicable original principal balance of the Allocated Loan Amount for the affected Individual Property, Property or the costs of completing Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyNet Proceeds Threshold Amount, but less than twenty percent (20%) of the applicable original principal balance of the Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i6.1(a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Property:
(a) If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) the Restoration Threshold, provided that no Event of the applicable Allocated Loan Amount for the affected Individual PropertyDefault shall have occurred and be continuing, then the Net Proceeds will be disbursed by Lender to the Borrower owning such Property upon receipt, provided that all of receipt and Borrowers shall diligently proceed to Restore the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence Restoration in accordance with the terms of this Agreementapplicable Property.
(b) If (i) the Net Proceeds are shall be equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or Restoration Threshold and/or the costs of completing the Restoration are shall be equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, but (ii) the Net Proceeds shall be less than twenty percent (20%) the Restoration Value Threshold, provided that no Event of the applicable Allocated Loan Amount for the affected Individual Property, then, in either caseDefault shall have occurred and be continuing, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration of the applicable Property in accordance with the provisions of this Section 6.4, provided that the conditions set forth in Section 6.4(c)(i)(A), (B), (D), (F), (G) and (H) hereof are met.
(c) If (i) the Net Proceeds shall be equal to or greater than the Restoration Threshold and/or the costs of completing the Restoration shall be equal to or greater than the Restoration Threshold, and (ii) the Net Proceeds shall equal or exceed the Restoration Value Threshold, the Net Proceeds shall be held by Lender and Lender shall have the right, in its sole discretion, to (A) apply the Net Proceeds to the Debt in accordance with the provisions of Section 6.4(d) hereof, or (B) make the Net Proceeds available for the Restoration of such Property in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 Agreement shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(iSections 6.1(a)(i), (iv), (vi), (ix) and (x) hereof as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds (defined below) shall be less than $7,000,000 and the costs of completing the Restoration shall each be less than five percent (5%) of $7,000,000, Borrower shall have the applicable Allocated Loan Amount for the affected Individual Property, then right to settle all claims with respect to such Net Proceeds and the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(iSubsection 4.4(b)(i)(A), (D), (H) and (I) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this AgreementSecurity Instrument.
(bi) The Net Proceeds shall be made available to Borrower for the Restoration to the extent the Borrower is required to restore the Improvements pursuant to the terms and conditions of the CORXX xx that certain lease dated January 11, 1997 with Sears Roexxxx xxd Co., or provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing under the Note, this Security Instrument or any of the Other Security Documents;
(B) (1) in the event that the Net Proceeds are Insurance Proceeds, less than thirty-five percent (35%) of the total floor area of the Improvements has been damaged, destroyed or rendered unusable as a result of such fire or other casualty or (2) in the event that the Net Proceeds are Condemnation Proceeds, such condemnation or eminent domain proceeding does not render untenantable more than fifteen percent (15%) of the rental either of the Improvements or does not decrease the fair market value of the Property by more than fifteen percent (15%);
(C) Leases demising in the aggregate at least seventy-five percent (75%) of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty, or taking by condemnation or eminent domain proceeding, shall remain in full force and effect during and after the completion of the Restoration;
(D) Borrower shall commence the Restoration as soon as reasonably practicable and shall diligently pursue the same to satisfactory completion;
(E) Lender shall be reasonably satisfied that any operating deficits which will be incurred with respect to the Property as a result of the occurrence of any such fire or other casualty, or taking by condemnation or eminent domain proceeding, will be covered out of (1) the Net Proceeds, (2) the insurance -42- 51 coverage referred to in Subsection 3.3(a)(iii), or (3) by other funds of, or available to, Borrower;
(F) Lender shall be reasonably satisfied that, upon the completion of the Restoration, the gross cash flow and the net cash flow of the Property will be restored to a level sufficient to cover all carrying costs and operating expenses of the Property, including, without limitation, debt service on the Note at a coverage ratio (after deducting all required reserves as required by Lender from net operating income) of at least 1.10 to 1.0, which coverage ratio shall be determined by Lender in its sole and absolute discretion on the basis of the Applicable Interest Rate (as defined in the Note);
(G) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date (as defined in the Note), (2) prior to the expiration of the loss of rents insurance which is required to be maintained pursuant to Subsection 3.3(a)(iii) hereof, (3) such time as may be required under applicable zoning law, ordinance, rule or regulation in order to repair and restore the Property to substantially the same condition it was in immediately prior to such fire or other casualty, or taking by condemnation or eminent domain proceeding or (4) the earliest date required for such completion under the terms of any Leases which are required in accordance with the provisions of Subsection 4.4(b)(i)(C) to remain in effect subsequent to the occurrence of such fire or other casualty, or taking by condemnation or eminent domain preceding, and the completion of the Restoration;
(H) the Property and the use thereof after the Restoration will be in material compliance with and permitted under all applicable zoning laws, ordinances, rules and regulations;
(I) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable governmental laws, rules and regulations (including, without limitation, all applicable Environmental Laws (defined below)); and
(J) such fire or other casualty or taking, as applicable, does not result in a temporary loss of access to the Property or the Improvements which cannot be restored in connection with the Restoration.
(ii) The Net Proceeds shall be held by Lender and, until disbursed in accordance with the provisions of this Subsection 4.4(b), shall constitute additional security for the Obligations. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the Restoration have been paid for in full (subject to applicable retainages), and (B) there exist no notices of pendency, stop orders, mechanic's or materialman's liens or notices of intention to file same, or any other liens -43- 52 or encumbrances of any nature whatsoever recorded against the Property arising out of the Restoration which have not either been fully bonded to the reasonable satisfaction of Lender and discharged of record or in the alternative fully insured to the reasonable satisfaction of Lender by the title company insuring the lien of this Security Instrument.
(iii) If the Net Proceeds are equal to or greater than five percent $7,000,000, all plans and specifications (5%other than those setting forth the restoration of leasehold improvements to be performed by applicable tenants under Leases) required in connection with the Restoration shall be subject to prior review and acceptance (which shall not be unreasonably withheld) in all respects by Lender and the Casualty Consultant (as defined herein); which plans and specifications shall be deemed approved in the event that Lender shall not have notified Borrower in writing of its disapproval (together with a statement of the applicable Allocated Loan Amount grounds of such disapproval) within thirty (30) days after Borrower has submitted such plans and specifications to Lender for approval. After an Event of Default, Lender shall have the affected Individual Property, but less than twenty percent (20%) use of the applicable Allocated Loan Amount for plans and specifications (whether or not approved in connection with the affected Individual Propertypreceding sentence) and all permits, licenses and approvals required or obtained in connection with the costs of completing Restoration Restoration. If the Net Proceeds are equal to or greater than five percent (5%) $7,000,000, the identity of the applicable Allocated Loan Amount for contractors, subcontractors and materialmen engaged in the affected Individual PropertyRestoration, but less than twenty percent as well as the contracts under which they have been engaged, shall be subject to prior review and acceptance (20%which shall not be unreasonably withheld or delayed) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and the Casualty Consultant; which persons and contracts shall be deemed approved in the event that Lender shall make not have notified Borrower in writing of its disapproval (together with a statement of the grounds of such disapproval) within thirty (30) days after Borrower has submitted the identity of such persons and such contracts to Lender for approval. Plans and specifications and/or identities and contracts submitted to Lender for its approval in accordance with this Subsection 4.4(b)(iii) shall be sent in an envelope labeled "PRIORITY" and shall state at the top of the first page in bold lettering "LENDER'S RESPONSE IS REQUIRED WITHIN THIRTY DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A MORTGAGE BETWEEN THE UNDERSIGNED AND LENDER." All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant's fees, shall be paid by Borrower.
(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time in connection with the Restoration, as certified by an independent consulting engineer selected by Lender (the "CASUALTY CONSULTANT"), minus the Casualty Retainage. The term "CASUALTY RETAINAGE" as used in this Section 4.4 shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until such time as the Casualty Consultant certifies to Lender that Net Proceeds representing fifty percent (50%) of the required Restoration have been disbursed. There shall be no Casualty Retainage with respect to costs actually incurred by Borrower for work in place in completing the last fifty percent (50%) of the required Restoration. The Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Subsection 4.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and -44- 53 materialmen engaged in the Restoration. The Casualty Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 6.4. The term “Net Proceeds” Subsection 4.4(b) and that all approvals necessary for purposes the re-occupancy and use of the Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage, provided, however, that Lender will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has substantially completed all work and has supplied all materials substantially in accordance with the provisions of the contractor's, subcontractor's or materialman's contract, and the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company insuring the lien of this Section 6.4 Security Instrument. If required by Lender, the release of any such portion of the Casualty Retainage shall mean: (i) be approved by the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees)surety company, if any, in collecting same (“Insurance Proceeds”)which has issued a payment or performance bond with respect to the contractor, subcontractor or (ii) the net amount of the Award, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may bematerialman.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) and the costs of completing the Restoration shall each be less than five percent Two Hundred Fifty Thousand and 00/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$250,000.00), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent Two Hundred Fifty Thousand and 00/100 Dollars (5%$250,000.00) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent Two Hundred Fifty Thousand and 00/100 Dollars (5%$250,000.00) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “"Net Proceeds” for purposes of this Section 6.4 " shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i6.1(a)(i), (iv), (vi), (ixvii) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"Insurance Proceeds”"), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"Condemnation Proceeds”"), whichever the case may be.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than the Relevant Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receiptBorrower, provided that all of the conditions set forth in Section 6.4(b)(i) (excluding clauses (E), (F), and (K)) hereof are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i1) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii2) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such Casualty or (y) Borrower is required under a Major Tenant Lease to use the Net Proceeds for the Restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds, and (x) less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land, or (y) Borrower is required under a Major Tenant Lease to use the Net Proceeds for the Restoration of the Property;
(C) The applicable Major Lease or Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such Casualty or Condemnation, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and Borrower and/or Tenant, as applicable under the respective Lease, will make all necessary repairs and restorations thereto at their sole cost and expense. The term “Rentable Space Percentage” shall mean (1) in the event the Net Proceeds are Insurance Proceeds, a percentage amount equal to seventy five percent (75%) and (2) in the event the Net Proceeds are Condemnation Proceeds, a percentage amount equal to seventy five percent (75%);
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be 1ess than $ 75,000 and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property$75,000, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i8.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, $75,000 or the costs of completing the Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property$75,000, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.48.4. The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 8.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 8.1 (a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destructiona Casualty, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting the same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (ii) the net amount of the AwardAward as a result of a Condemnation, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting the same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, less than thirty percent (30%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of a Casualty or (2) in the event the Net Proceeds are Condemnation Proceeds, less than ten percent (10%) of the land constituting the Property is taken, such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land;
(C) Leases covering in the aggregate at least seventy-five percent (75%) of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such Casualty or Condemnation, whichever the case may be, and each Major Lease in effect as of such date shall remain in full force and effect during and after the completion of the Restoration without abatement of rent beyond the time required for Restoration;
(D) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after such Casualty or Condemnation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;
(E) Lender shall be satisfied that any operating deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the Property as a result of the occurrence of any such Casualty or Condemnation, whichever the case may be, will be covered out of the insurance coverage referred to in Section 8.1(a)(iii) above;
(F) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases or material agreements affecting the Property, (3) such time as may be required under applicable zoning law, ordinance, rule or regulation, or (4) the expiration of the insurance coverage referred to in Section 8.l(a)(iii);
(G) the Property and the use thereof after the Restoration will be in compliance with and permitted under all Legal Requirements;
(H) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements;
(I) such Casualty or Condemnation, as applicable, does not result in the loss of access to the Property or the Improvements;
(J) Borrower shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by Borrower's architect or engineer stating the entire cost of completing the Restoration, which budget shall be acceptable to Lender; and
(K) the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender's reasonable judgment to cover the cost of the Restoration.
(ii) The Net Proceeds shall be held by Lender until disbursements commence, and, until disbursed in accordance with the provisions of this Section 8.4(b), shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all the conditions precedent to such advance, including those set forth in Section 8.4(b)(i), have been satisfied, (B) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full, and (C) there exist no notices of pendency, stop orders, mechanic's or materialman's liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy. Notwithstanding the foregoing, Insurance Proceeds from the Policies required to be maintained by Borrower pursuant to Section 8.1(a)(iii) shall be controlled by Lender at all times, shall not be subject to the provisions of this Section 8.4 and shall be used solely for the payment of the obligations under the Loan Documents and Operating Expenses.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the "RESTORATION CONSULTANT"). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts in excess of $50,000 under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Restoration Consultant. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration, including, without limitation, reasonable counsel fees and disbursements and the Restoration Consultant's fees, shall be paid by Borrower.
(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Restoration Consultant, minus the Restoration Retainage. The term "RESTORATION RETAINAGE" shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Restoration Consultant, until the Restoration has been completed. The Restoration Retainage shall be reduced to five percent (5%) of the costs incurred upon receipt by Lender of satisfactory evidence that fifty percent (50%) of the Restoration has been completed. The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 8.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Restoration Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 8.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate Governmental Authorities, and Lender receives evidence satisfactory to 45 Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Restoration Retainage; provided, however, that Lender will release the portion of the Restoration Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Restoration Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor's, subcontractor's or materialman's contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and Lender receives an endorsement to the Title Insurance Policy insuring the continued priority of the lien of the Deed of Trust and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Restoration. If there are In the event a Restoration is to be performed under this subsection IV(q)(iv), Beneficiary shall not release any Improvements on the Property, the following provisions shall apply:
(a) If part of the Net Proceeds and the costs of completing Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Award or the costs of completing Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Insurance Proceeds will be held by Lender and Lender shall make the Net Proceeds available for Restoration except in accordance with the provisions of this Section 6.4. The term “Net Proceeds” subsection IV(q)(v) and Trustor shall, prior to commencing any work to effect a Restoration of the Chlor Alkali Plant and the Equipment, promptly (but in no event later than one-hundred twenty (120) days following any Destruction or Taking) furnish to Beneficiary:
(A) complete plans and specifications (the "Plans and Specifications") for purposes the Restoration;
(B) an officers' certificate stating that all permits and approvals required by law to commence work in connection with the Restoration have been obtained;
(C) a certificate (an "Architect's Certificate") of this Section 6.4 shall mean: an independent, reputable architect or engineer acceptable to Beneficiary and licensed in the State (i1) stating that the net amount of all insurance proceeds received Plans and Specifications have been reviewed and approved by Lender pursuant to Section 6.1 (a)(i)the signatory thereto, (iv)2) containing such signatory's estimate (an "Estimate") of the costs of completing the Restoration, (vi), (ix) and (x3) as a result upon completion of such damage or destructionRestoration in accordance with the Plans and Specifications, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount utility of the Chlor Alkali Plant and the Equipment will be equal to or greater than the utility thereof immediately prior to the Destruction or Taking relating to such Restoration; and
(D) if the Estimate exceeds the Insurance Proceeds or the Net Award, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever as the case may be., by $5,000,000 or more, an Additional Undertaking in an amount equal to not less than the Estimate less the amount of the Insurance Proceeds or the Net Award, as the case may be, then held by Beneficiary for application toward the cost of such Restoration. Upon receipt by Beneficiary of each of the items required pursuant to clauses (A) through (D) above, Beneficiary shall acknowledge receipt of the Plans and Specifications. Promptly upon such acknowledgment of receipt by Beneficiary, Trustor shall commence and diligently continue to perform the Restoration substantially in accordance with such Plans and Specifications and in material compliance with all Governmental
Appears in 1 contract
Samples: Deed of Trust (Pioneer East Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Property:
(a) If the Net Proceeds shall be less than Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00) and the costs of completing the Restoration shall each be less than five percent Two Hundred Fifty Thousand and 00/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$250,000.00), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent Two Hundred Fifty Thousand and 00/100 Dollars (5%$250,000.00) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent Two Hundred Fifty Thousand and 00/100 Dollars (5%$250,000.00) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “"Net Proceeds” for purposes of this Section 6.4 " shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i6.1(a)(i), (iv), (vi), (ixvii) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"Insurance Proceeds”"), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"Condemnation Proceeds”"), whichever the case may be.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the following provisions shall apply:
(a) If the Net Proceeds Subject to provisions of Sections 6.06 and the costs of completing Restoration shall each be less than five percent (5%) 11.02 hereof, if any or all of the applicable Allocated Loan Amount Property is damaged or destroyed, Tenant shall, if any insurance proceeds are available to Tenant and adequate for such purposes, commence and complete restoration with reasonable diligence as nearly as possible to the affected Individual Property’s value, then condition and character immediately before such damage or destruction, to the Net Proceeds will be disbursed by Lender extent such insurance proceeds are available to Borrower upon receiptTenant therefore, provided that all such construction can reasonably be completed within the Term. In the event that damage or destruction occurs to the Property within the last five (5) years of the conditions set forth in Term (or, if the Term is extended pursuant to Section 6.4(b)(i2.01, within the last ten (10) are met and Borrower delivers years of the Option Period), Tenant shall have no obligation to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence Restoration in accordance with restore the terms of this AgreementProperty.
(b) If the Net Proceeds are equal Subject to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all Sections 6.06 and 11.02 hereof, insurance proceeds received by Lender pursuant (other than any proceeds which are separately paid on account of any damage to Section 6.1 (a)(i)or destruction of Tenant’s personal property, (iv)inventory or work-in-process, (vi), (ixall of which shall be paid to Tenant) and (x) payable as a result of such damage casualty under policies of insurance held by or destructionfor the account of Tenant with respect to the Property pursuant to Article VI against such casualty and received by Tenant and/or Landlord, after deduction as the case may be (less such reasonable attorneys’ fees or other expenses as are incurred by the Landlord and/or Tenant in the collection thereof, which shall be paid out of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and feessuch proceeds), shall be used, if anyavailable proceeds are sufficient therefor, to restore the Improvements in collecting same accordance with Subsection (“Insurance Proceeds”), or a) of this Section. Any remaining proceeds shall be disbursed as follows: (i) to the Permitted Leasehold Mortgagees in order of priority of their liens to the extent governed and required by their loan documents and (ii) to the net amount Tenant, to the extent of any remaining proceeds after disbursement pursuant to (i) above.
(c) Anything in this Lease to the Awardcontrary notwithstanding other than Section 6.06 and Section 11.02 hereof, after deduction upon the expiration or earlier termination of Lender’s reasonable costs this Lease before such restoration is completed free and expenses clear of any liens, any insurance proceeds not theretofore applied to the cost of such restoration or to Permitted Leasehold Mortgages (includingin order of priority of their liens, but not limited to, reasonable counsel costs to the extent governed and fees), if any, in collecting same (“Condemnation Proceeds”), whichever required by the case may beMortgage loan documents) shall be paid to the Tenant and Landlord to the extent permitted by the Permitted Leasehold Mortgage documents.
Appears in 1 contract
Samples: Ground Lease
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than Five Hundred Thousand and No/100 Dollars ($500,000) and the costs of completing the Restoration shall each be less than five percent Five Hundred Thousand and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$500,000), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent Five Hundred Thousand and No/100 Dollars (5%$500,000) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent Five Hundred Thousand and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case$500,000), the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(iSections 6.1(a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration:
(a) If the Net Proceeds shall be less than the Threshold Amount and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyThreshold Xxxxxx, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual PropertyThreshold Amount, or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either caseThreshold Amount, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “"Net Proceeds” " for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"Insurance Proceeds”"), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"Condemnation Proceeds”"), whichever the case may be.
(i) The Net Proceeds shall be made available to the applicable Borrower for Restoration upon the approval of Lender in its sole discretion that the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, less than twenty-five percent (25%) of the total floor area of the Improvements on the applicable Property has been damaged, destroyed or rendered unusable as a result of such Casualty or (2) in the event the Net Proceeds are Condemnation Proceeds, less than ten percent (10%) of the land constituting such Property is taken, and such land is located along the perimeter or periphery of such Property, and no portion of the Improvements is located on such land;
(C) Leases demising in the aggregate a percentage amount equal to or greater than ninety percent (90%) of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such Casualty or Condemnation, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense;
(D) Borrower, as applicable, shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after such Casualty or Condemnation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;
(E) Lender shall be satisfied that any operating deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the applicable Property as a result of the occurrence of any such Casualty or Condemnation, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 6.1(a)(iii), if applicable, or (3) by other funds of Borrower;
(F) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases, (3) such time as may be required under applicable Legal Requirements or (4) the expiration of the insurance coverage referred to in Section 6.1(a)(iii);
(G) the applicable Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal Requirements;
(H) the Restoration shall be done and completed by such Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements;
(I) such Casualty or Condemnation, as applicable, does not result in the loss of access to the Property or the related Improvements;
(J) the Debt Service Coverage Ratio for the affected Property, after giving effect to the Restoration, shall be equal to or greater than 1.60 to 1.0;
(K) the Loan to Value Ratio after giving effect to the Restoration, shall be equal to or less than 85 percent (85%), but in no event greater than the Loan to Value Ratio existing at the Closing Date;
(L) such Borrower shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by such Borrower's architect or engineer stating the entire cost of completing the Restoration, which budget shall be acceptable to Lender; and
(M) the Net Proceeds together with any cash or cash equivalent deposited by such Borrower with Lender are sufficient in Lender's discretion to cover the cost of the Restoration.
(ii) The Net Proceeds shall be held by Lender in an interest-bearing account and, until disbursed in accordance with the provisions of this Section 6.4(b), shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, such Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work and labor performed in connection with the then-requested disbursements and all previous disbursements (except to the extent that they are to be paid for out of the requested disbursement) in connection with the Restoration have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic's or materialman's liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the applicable Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the "Casualty Consultant"). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Casualty Consultant. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant's fees, shall be paid by such Borrower.
(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Casualty Retainage. The term "Casualty Retainage" shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until the Restoration has been completed. The Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 6.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Casualty Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 6.4(b) and that all approvals necessary for the re-occupancy and use of applicable Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage; provided, however, that Lender will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor's, subcontractor's or materialman's contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and Lender receives an endorsement to the Title Insurance Policy insuring the continued priority of the lien of the related Mortgage and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Casualty Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, then the Net Proceeds will be disbursed by Lender Administrative Agent to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i7.4(b)(i) are met and Borrower delivers to Lender Administrative Agent a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Restoration Threshold or the costs of completing the Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender Administrative Agent shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. 7.4.
(i) The term “Net Proceeds” Proceeds shall be made available for purposes Restoration provided that each of this Section 6.4 the following conditions are met:
(A) no Event of Default shall mean: have occurred and be continuing;
(B) (1) in the event the Net Proceeds are insurance proceeds, less than forty percent (40%) of each of (i) fair market value of the Property as reasonably determined by Administrative Agent, and (ii) rentable area of the Property has been damaged, destroyed or rendered unusable as a result of a Casualty or (2) in the event the Net Proceeds are condemnation proceeds, less than fifteen percent (15%) of each of (i) the net amount fair market value of all insurance proceeds received the Property as reasonably determined by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) Administrative Agent and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount rentable area of the AwardProperty is taken, after deduction such land is located along the perimeter or periphery of Lender’s reasonable costs the Property, no material portion of the Improvements is located on such land and expenses such taking does not materially impair the existing access to the Property;
(including, but not limited to, reasonable counsel costs C) Leases demising in the aggregate a percentage amount equal to or greater than seventy-five percent (75%) of the total rentable space in the Property which has been demised under executed and fees), if any, delivered Leases in collecting same (“Condemnation Proceeds”)effect as of the date of the occurrence of such Casualty or Condemnation, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and Borrower furnishes to Administrative Agent evidence satisfactory to Administrative Agent that all Tenants under Major Leases shall continue to operate their respective space at the Property after the completion of the Restoration;
(D) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than thirty (30) days after the issuance of a building permit with respect thereto) and shall diligently pursue the same to satisfactory completion in compliance with all Applicable Laws, including, without limitation, all applicable Environmental Laws;
(E) Administrative Agent shall be satisfied that any operating deficits which will be incurred with respect to the Property as a result of the occurrence of any such Casualty or Condemnation will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 7.1(a)(iii) above, or (3) by other funds of Borrower;
(F) Administrative Agent shall be satisfied that, upon the completion of the Restoration, the Reimbursements and Other Operating Income and Underwritable Cash Flow of the Property will be restored to a level sufficient to cover all carrying costs and operating expenses of the Property;
(G) Administrative Agent shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) the expiration of the insurance coverage referred to in Section 7.1(a)(iii) above, or (3) such time as may be required under applicable zoning law, ordinance, rule or regulation in order to repair and restore the Property to the condition it was in immediately prior to such Casualty or Condemnation;
(H) Borrower shall execute and deliver to Administrative Agent, for the benefit of Lenders, a completion guaranty in form and substance satisfactory to Administrative Agent and its counsel pursuant to the provisions of which Borrower shall guaranty to Administrative Agent, for the benefit of Lenders, the lien-free completion by Borrower of the Restoration in accordance with the provisions of this Subsection 7.4(b);
(I) the Property and the use thereof after the Restoration will be in material compliance with and permitted under the Property Documents and all Applicable Law;
(J) the Property Documents will remain in full force and effect during and after the Restoration and a Property Document Event shall not occur as a result of the applicable Casualty, Condemnation and/or Restoration; and
(K) the Restoration shall be done and completed in a reasonably expeditious and diligent fashion and in material compliance with the Property Documents and all Applicable Law.
(ii) The Net Proceeds shall be held by Administrative Agent, for the benefit of Lenders, in an interest-bearing account (bearing interest at a rate established by Administrative Agent or its servicing agent, which may or may not be the highest rate then available), and, until disbursed in accordance with the provisions of this Section 7.4(b), shall constitute additional security for the Debt and other obligations under this Agreement, the Security Instrument, the Note and the other Loan Documents. The Net Proceeds (other than the Rent Loss Proceeds) shall be disbursed by Administrative Agent to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Administrative Agent that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the related Restoration item have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Administrative Agent and discharged of record or in the alternative fully insured to the satisfaction of Administrative Agent by the title company issuing the Title Insurance Policy.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Administrative Agent and by an independent consulting engineer selected by Administrative Agent (the “Casualty Consultant”), such acceptance not to be unreasonably withheld, conditioned or delayed. Administrative Agent shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration shall be subject to prior review and acceptance by Administrative Agent and the Casualty Consultant, such acceptance not to be unreasonably withheld, conditioned or delayed. All reasonable costs and expenses incurred by Administrative Agent in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s reasonable fees, shall be paid by Borrower. Borrower shall have the right to settle all claims under the Policies (subject to Administrative Agent’s approval of the final settlement, which approval shall not be unreasonably withheld, conditioned or delayed), provided that (a) no Event of Default exists, (b) Borrower promptly and with commercially reasonable diligence negotiates a settlement of any such claims and (c) the insurer with respect to the Policy under which such claim is brought has not raised any act of the insured as a defense to the payment of such claim. If an Event of Default exists, Administrative Agent shall, at its election, have the exclusive right to settle or adjust any claims made under the Policies in the event of a Casualty.
(iv) In no event shall Administrative Agent be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Restoration Retainage. The term “Restoration Retainage” as used in this Subsection 7.4(b) shall mean an amount equal to 10% of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until such time as the Casualty Consultant certifies to Administrative Agent that Net Proceeds representing 50% of the required Restoration have been disbursed. There shall be no Restoration Retainage with respect to costs actually incurred by Borrower for work in place in completing the last 50% of the required Restoration. The Restoration Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Subsection 7.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Restoration Retainage shall not be released until the Casualty Consultant certifies to Administrative Agent that the Restoration has been completed in accordance with the provisions of this Subsection 7.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Administrative Agent receives evidence satisfactory to Administrative Agent that the costs of the Restoration have been paid in full or will be paid in full out of the Restoration Retainage, provided, however, that Administrative Agent will release the portion of the Restoration Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Administrative Agent that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, and the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Administrative Agent or by the title company insuring the lien of the Security Instrument. If required by Administrative Agent, the release of any such portion of the Restoration Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.
Appears in 1 contract
Samples: Loan Agreement (Cole Credit Property Trust III, Inc.)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, then $25,000.00 the Net Proceeds will be disbursed by b Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(iSubsection 4.3(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this AgreementSecurity Instrument.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and $25,000.00 Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4Subsection 4.3(b). The term “"Net Proceeds” " for purposes of this Section 6.4 4.3 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(iSubsections 3.2(a)(i), (iv), (vi), (ix) and (x'ix) of this Security Instrument as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"Insurance Proceeds”"), or (ii) the net amount of the Awardall awards and payments received by Lender with respect to a taking referenced in Section 3.5 of this Security Instrument, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"Condemnation Proceeds”"), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for the Restoration provided that each of the following conditions are met: (A) no Event of Default shall have occurred and be continuing under the Note, this Security Instrument or any of the other Loan Documents; (B) Borrower shall have commenced the Restoration as soon as reasonably practicable (but in no event later than ninety (90) days after such damage or destruction or taking, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion; (C) Lender shall be satisfied that any operating deficits, including all scheduled payments of principal and interest under the Note at the Applicable Interest Rate (as defined in the Note), which will be incurred with respect to the Property as a result of the occurrence of any such fire or other casualty or taking, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Subsection 3.2(a)(iii), if applicable, or (3) by other funds of Borrower, (D) Lender shall be satisfied that for the twelve (12) month period succeeding the completion of the Restoration, the ratio of sustainable net operating income for the Property (after deduction for applicable reserves) to debt service payable under the Note shall be at least 1.25 to 1.0 (E) Lender shall be reasonably satisfied that the Restoration will be completed on or before the earliest to occur of (I) twelve (12) months prior to the Maturity Date (as defined in the Note), (2) twelve (12) months after the occurrence of such fire or other casualty or taking, whichever the case may be, 3) the earliest date required for such completion under the terms of any Leases which are required in accordance with the provisions of this Subsection 4.3(b) to remain in effect subsequent to the occurrence of such fire or other casualty or taking, whichever the case may be, and the completion of the Restoration or (4) such time as may be required under any applicable zoning laws, ordinances, rules or regulations in order to repair and restore the Property to the condition it was in immediately prior to such fire or other casualty or to as nearly as possible the condition it was in immediately prior to such taking, as applicable; (F) the Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable zoning laws, ordinances, rules and regulations; (G) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable laws, rules and regulations; and (H) such fire or other casualty or taking, as applicable, does not result in the loss of access to the Property or the Improvements.
(ii) The Net Proceeds shall be held by Lender and? until disbursed in accordance with the provisions of this Subsection 4.3(b), shall constitute additional security for the Obligations. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the Restoration have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic's or materialman's liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property arising out of the Restoration which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company insuring the lien of this Security Instrument.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and approval in all respects by Lender and by an independent consulting engineer selected by Lender (the "Casualty Consultant'), which approval shall not be unreasonably withheld or delayed. Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Casualty Consultant, which approval shall not be unreasonably withheld or delayed. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant's fees, shall be paid by Borrower.
(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as of the Restoration, as certified by the Casualty Consultant, minus the Casualty Retainage. The term "
Appears in 1 contract
Samples: Assumption and Release Agreement (Blue Ridge Real Estate Co)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration:
(a) If the Net Proceeds shall be less than Five Hundred Thousand and No/100 Dollars ($500,000.00) and the costs of completing the Restoration shall each be less than five percent Five Hundred Thousand and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$500,000.00), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent Five Hundred Thousand and No/100 Dollars (5%$500,000.00) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent One Million and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case$1,000,000.00), the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, then in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.46.4(b). The term term. “Net Proceeds” for purposes of this Section 6.4 shall mean: (ix) the net amount of all ail insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (iiy) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall apply:apply in connection with the Restoration of the Property;
(a) If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, then in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the 50 Restoration in accordance with the provisions of this Section 6.46.4(b). The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 shall mean: (ix) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (iiy) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds, and (x) less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property;
(C) Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense. The term "RENTABLE SPACE PERCENTAGE" shall mean (x) in the event the Net Proceeds are Insurance Proceeds, a percentage amount equal to fifty percent (50%) and (y) in the event the Net Proceeds are Condemnation Proceeds, a percentage amount equal to fifty percent (50%);
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Restoration. If there are any Improvements on Subject to the Propertyterms of the applicable Qualified Lease (other than and specifically excluding the Loews Lease), the following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than One Hundred Thousand and No/100 Dollars ($100,000) and the costs of completing the Restoration shall each be less than five percent One Hundred Thousand and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$100,000), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) 9.29 are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence diligence, or cause the tenant under a Qualified Lease, to the extent applicable, to expeditiously commence and to satisfactorily complete with due diligence, the Restoration in accordance with the terms of this AgreementAgreement and the Qualified Lease.
(b) If the Net Proceeds are equal to or greater than five percent One Hundred Thousand and No/100 Dollars (5%$100,000) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent One Hundred Thousand and No/100 Dollars (5%$100,000) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this 82 89 Section 6.49.29. The term “"Net Proceeds” " for purposes of this Section 6.4 9.29 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 9.05(b)(i), (a)(iiii), (iv), (vi), (ix) and (xix) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, including reasonable counsel costs and fees), if any, in collecting same (“"Insurance Proceeds”"), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, including reasonable counsel costs and fees), if any, in collecting same (“"Condemnation Proceeds”"), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:
A. no Event of Default shall have occurred and be continuing;
B. (1) in the event the Net Proceeds are Insurance Proceeds, less than twenty-five percent (25%) of the total floor area of the Improvements on the Individual Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty or (2) in the event the Net Proceeds are Condemnation Proceeds, less than ten percent (10%) of the land constituting the Individual Property is taken, and such land is located along the perimeter or periphery of the Individual Property, and no portion of the Improvements is located on such land;
Appears in 1 contract
Restoration. If there are Notwithstanding anything to the contrary contained in this Agreement or in any Improvements on the PropertyLoan Document, the following provisions of this Section 5.4 (and any similar provisions of this Agreement or any Loan Document pertaining to Restoration) shall applyonly apply in the event that either (i) the Ground Lease (or any Lease in substitution thereof) is no longer in effect, and/or (ii) Lender is entitled to take receipt of Insurance Proceeds or Awards pursuant to the terms of the Ground Lease or control the restoration process following a Casualty or Condemnation; otherwise the terms of such Ground Lease, with respect to any restoration of the property subject thereto, shall control:
(a) If (i) the Net Proceeds shall be less than One Million and No/100 Dollars ($1,000,000) and the costs of completing the Restoration shall each be less than five percent One Million and No/100 Dollars (5%$1,000,000) and (ii) no Event of the applicable Allocated Loan Amount for the affected Individual PropertyDefault has occurred and is continuing, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i5.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent One Million and No/100 Dollars (5%$1,000,000) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent One Million and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case$1,000,000), the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.45.4. The term “Net Proceeds” for purposes of this Section 6.4 5.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 5.1.1 (a)(i), (iv), and (vi), (ix) and (xSection 5.1.1(h) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be. Notwithstanding the foregoing or anything else to the contrary contained in this Agreement or any Loan Document, the term “Insurance Proceeds” shall not include any insurance proceeds to which Ground Tenant is entitled to under the Ground Lease.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall apply:apply in connection with the Restoration of the Property;
(a) If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, then in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.46.4(b). The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 shall mean: (ix) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (iiy) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds, and (x) less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property;
(C) Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense. The term "RENTABLE SPACE PERCENTAGE" shall mean (x) in the event the Net Proceeds are Insurance Proceeds, a percentage amount equal to fifty percent (50%) and (y) in the event the Net Proceeds are Condemnation Proceeds, a percentage amount equal to fifty percent (50%);
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with any Restoration:
(a) If the Net Proceeds shall be less than the Casualty Threshold and the costs of completing Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyCasualty Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, ; provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyCasualty Threshold, but less than twenty percent (20%) of the applicable Allocated original principal balance of the Loan Amount for the affected Individual Property, or the costs of completing Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyCasualty Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for original principal balance of the affected Individual Property, then, in either caseLoan, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i6.1(a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
Samples: Loan Agreement (Lightstone Value Plus Real Estate Investment Trust V, Inc.)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in ----------- connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than Five Hundred Thousand and No/100 Dollars ($500,000) and the costs of completing the Restoration shall each be less than five percent Five Hundred Thousand and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$500,000), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i7.1.3(b)(i) ------------------- are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent Five Hundred Thousand and No/100 Dollars (5%$500,000) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent Five Hundred Thousand and No/100 Dollars (5%$500,000) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.47.1.3. The term “Net Proceeds” "NET PROCEEDS" ------------- ------------ for purposes of this Section 6.4 7.1.3 shall mean: (i) the net amount of all ------------- insurance proceeds received by Lender pursuant to Section 6.1 7.1.1 (a)(i), (iv), -------------------------- (vi), (ix) and (xvii) as a result of such damage or destruction, after deduction of Lender’s its -------------- reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (ii) the net amount ------------------ of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.. ---------------------
(i) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, less than fifty percent (50%) of the total floor area of the Improvements on the Individual Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty or (2) in the event the Net Proceeds are Condemnation Proceeds, less than ten percent (10%) of the land constituting the Individual Property is taken, and such land is located along the perimeter or periphery of the Individual Property, and no portion of the Improvements is located in such land;
(C) Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Individual Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be. The term "RENTABLE SPACE -------------- PERCENTAGE" shall mean (1) in the event the Net Proceeds are ---------- Insurance Proceeds, a percentage amount equal to twenty-five percent (25%) and (2) in the event the Net Proceeds are Condemnation Proceeds, a percentage amount equal to ten percent (10%);
(D) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after the later of (1) the date such damage or destruction or taking, whichever the case may be, occurs or (2) if any related Insurance Proceeds or Condemnation Proceeds, as the case may be, are to be paid to Lender in accordance with this Article VII, the date on which Lender makes any such Insurance Proceeds or Condemnation Proceeds received by Lender available to Borrower pursuant to this Section 7.1.1) and shall diligently pursue the same to ------------- satisfactory completion; (E) Lender shall be reasonably satisfied that any operating deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the Individual Property as a result of the occurrence of any such fire or other casualty or taking, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 7.1.1(a)(iii), if applicable, or (3) --------------------- by other funds of Borrower;
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, then in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.46.4(b). The term “Net Proceeds” for purposes of this Section 6.4 shall mean: ; (ix) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (iiy) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall apply:apply in connection with the Restoration of the Property;
(a) If the Net Proceeds shall be less than Relevant Restoration Threshold, and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, then in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.46.4(b). The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 shall mean: ; (ix) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (iiy) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds, and (x) less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property;
(C) Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense. The term "RENTABLE SPACE PERCENTAGE" shall mean (x) in the event the Net Proceeds are Insurance Proceeds, a percentage amount equal to fifty percent (50%) and (y) in the event the Net Proceeds are Condemnation Proceeds, a percentage amount equal to fifty percent (50%);
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration:
(a) If (i) the Net Proceeds shall be less than (A) the Major Restoration Threshold with respect to such individual Property and (B) when aggregated with the costs of all other alterations and Restorations affecting the Properties, the aggregate Major Restoration Threshold and (ii) the costs of completing the Restoration shall each be less (A) than five percent the Major Restoration Threshold with respect to such individual Property and (5%B) when aggregated with the costs of all other alterations and Restorations affecting the applicable Allocated Loan Amount for Properties, the affected Individual Propertyaggregate Major Restoration Threshold, then the Net Proceeds will be disbursed by Lender the Agent to the Borrower that owns the Property that is undergoing the Restoration (the “Restoring Borrower”) upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and the Restoring Borrower delivers to Lender the Agent a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If (i) the Net Proceeds are equal to or greater than five percent (5%A) the Major Restoration Threshold with respect to such individual Property or (B) when aggregated with the costs of all other alterations and Restorations affecting the applicable Allocated Loan Amount for Properties, the affected Individual Property, but less than twenty percent aggregate Major Restoration Threshold or (20%ii) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent (5%A) the Major Restoration Threshold with respect to such individual Property or (B) when aggregated with the costs of all other alterations and Restorations affecting the applicable Allocated Loan Amount for Properties, the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either caseaggregate Major Restoration Threshold, the Net Proceeds will be held by Lender the Agent and Lender the Agent shall make the Net Proceeds available for the Restoration in accordance with all of the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender the Agent pursuant to Section 6.1 (a)(iSections 6.1(a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable its costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lenderthe Agent’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Five Hundred Thousand and 00/100 Dollars ($500,000.00) and the costs of completing the Restoration shall each be less than five percent Five Hundred Thousand and 00/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$500,000.00), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent Five Hundred Thousand and 00/100 Dollars (5%$500,000.00) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent Five Hundred Thousand and 00/100 Dollars (5%$500,000.00) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i6.1(a)(i), (iv), (vi), (ixvii), (viii) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs fees and reasonable Casualty Consultant’s fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, then in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.46.4(b). The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 shall mean: (ix) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or 57 destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (iiy) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds, and (x) less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property;
(C) Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense. The term "RENTABLE SPACE PERCENTAGE" shall mean (x) in the event the Net Proceeds are Insurance Proceeds, a percentage amount equal to fifty percent (50%) and (y) in the event the Net Proceeds are Condemnation Proceeds, a percentage amount equal to fifty percent (50%);
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Restoration. If there are any Improvements on Subject to the Propertyterms of the applicable Qualified Lease (other than and specifically excluding the Loews Lease), the following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than One Hundred Thousand and No/100 Dollars ($100,000) and the costs of completing the Restoration shall each be less than five percent One Hundred Thousand and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$100,000), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) 9.29 are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence diligence, or cause the tenant under a Qualified Lease, to the extent applicable, to expeditiously commence and to satisfactorily complete with due diligence, the Restoration in accordance with the terms of this AgreementAgreement and the Qualified Lease.
(b) If the Net Proceeds are equal to or greater than five percent One Hundred Thousand and No/100 Dollars (5%$100,000) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent One Hundred Thousand and No/100 Dollars (5%$100,000) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.49.29. The term “"Net Proceeds” " for purposes of this Section 6.4 9.29 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 9.05(b)(i), (a)(iiii), (iv), (vi), (ix) and (xix) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, including reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, including reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower Grantor upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower Grantor delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, then in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.46.4(b). The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 shall mean: (ix) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (iiy) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.
(i) The Net Proceeds shall be made available to Grantor for Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty, or (y) Grantor is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds, and (x) less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the improvements is located on such land, or (y) Grantor is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property;
(C) Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense. The term "RENTABLE SPACE PERCENTAGE" shall mean (x) in the event the Net Proceeds are Insurance Proceeds, a percentage amount equal to fifty percent (50%) and (y) in the event the Net Proceeds are Condemnation Proceeds, a percentage amount equal to fifty percent (50%);
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If (i) the Net Proceeds and the costs of completing Restoration shall each be are less than the greater of (x) five percent (5%) of the applicable Allocated Loan Amount for of the affected applicable Individual PropertyProperty and (y) $1,000,000 and (ii) the costs of completing the Restoration are less than the greater of (x) five percent (5%) of the Allocated Loan Amount of the applicable Individual Property and (y) $1,000,000, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to thereafter shall expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If (i) the Net Proceeds are equal to or more than greater than of (x) five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Property and (y) $1,000,000 or (ii) the costs of completing the Restoration are equal to or more than greater than of (x) five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either caseProperty and (y) $1,000,000, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable third party counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
Samples: Loan Agreement (New York REIT, Inc.)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than the Casualty/Condemnation Threshold Amount and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyCasualty/Condemnation Threshold Amount, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) (A), (C), (F), (G) and (H) hereof are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Casualty/Condemnation Threshold Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyCasualty/Condemnation Threshold Amount, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i6.1(a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s the reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s the reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
Restoration. If there are any Improvements on The Loan Parties shall restore and repair the Property, the other Collateral, or any part thereof, now or hereafter damaged or destroyed by any Casualty or affected by any Taking; provided, however, that if the Casualty is not insured against or insurable, the Loan Parties shall so restore and repair even though no Insurance Proceeds are received. Notwithstanding anything to the contrary set forth in Section 8.6, Lxxxxx agrees that Lender shall make the Net Restoration Proceeds (other than business interruption Insurance Proceeds, which shall be held and disbursed as provided in Section 8.6) available to the Loan Parties for restoration and repair of the Property or the other Collateral affected by the Casualty or Taking (a “Restoration”), as applicable, on the following provisions terms and subject to the Loan Parties’ satisfaction of the following conditions; provided, that Lender shall applyhave the right to waive any of the following conditions in its discretion:
(a) If At the Net Proceeds time of such Casualty or Taking, as applicable, and at all times thereafter there shall exist no Event of Default;
(b) The Property affected by the costs Casualty or Taking, as applicable, shall be capable of completing Restoration being restored (including replacements) to substantially the same condition, utility, quality and character, as existed immediately prior to such Casualty or Taking, as applicable, in all material respects with a fair market value and projected cash flow of the Property equal to or greater than prior to such Casualty or Taking, as applicable;
(c) The Loan Parties shall each be demonstrate to Lxxxxx’s reasonable satisfaction their ability to pay the Obligations coming due during such repair or restoration period (after taking into account proceeds from business interruption insurance carried by the Loan Parties);
(i) In the event of a Casualty, the Casualty resulted in an actual or constructive loss of less than five percent (5%) 30% of the applicable Allocated Loan Amount for fair market value of the affected Individual Property and less than 30% of the usable area of the Property and (ii) in the event of a Taking, the Taking resulted in an actual or constructive loss of less than 15% of the fair market value of the Property and less than 15% of the usable area of the Property, then less than 15% of the Net Proceeds will be disbursed by land constituting the Property is taken, such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is the subject of such Taking;
(e) The Loan Parties shall have provided to Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met following, and Borrower delivers collaterally assigned the same to Lender a written undertaking pursuant to expeditiously commence assignment documents acceptable to Lender:
(i) an architect’s contract with an architect reasonably acceptable to Lxxxxx and complete plans and specifications for the Restoration of the Property lost or damaged to satisfactorily the condition, utility and value prior to the applicable Casualty; (ii) fixed-price or guaranteed maximum cost construction contracts with contractors reasonably acceptable to Lender for completion of the Restoration work in accordance with the aforementioned plans and specifications; (iii) such additional funds (if any) as are necessary from time to time, in Lender’s reasonable opinion, to complete with due diligence the Restoration 313271651.15 (which funds shall be held by Lender as additional collateral securing the Obligations and shall be 123 313271651.15 disbursed, if at all, pursuant to this Article VIII); and (iv) copies of all permits and licenses necessary to complete the Restoration in accordance with the terms of this Agreement.plans and specifications and all Legal Requirements;
(bf) If The Loan Parties shall commence such work within one hundred- twenty (120) days after such Casualty or Taking, as applicable, and shall diligently pursue such work to completion;
(g) Lender shall be satisfied that the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make completed on or before the Net Proceeds available for Restoration in accordance with the provisions earliest to occur of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant date six (6) months prior to Section 6.1 (a)(i)the Maturity Date, (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) such time as may be required under applicable Legal Requirements in order to repair and restore the net amount Property to the condition it was in immediately prior to such Casualty or such Taking, as applicable, (iii) the expiration of the Awardbusiness interruption insurance coverage referred to above, and (iv) the earliest date required pursuant to the terms of any Lease; and
(h) The Property and the use thereof after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, the Restoration will be in collecting same (“Condemnation Proceeds”), whichever the case may becompliance with all applicable Legal Requirements.
Appears in 1 contract
Samples: Loan Agreement (TerrAscend Corp.)
Restoration. If there are any Improvements on The Loan Parties shall restore and repair the Property, the other Collateral, or any part thereof, now or hereafter damaged or destroyed by any Casualty or affected by any Taking; provided, however, that if the Casualty is not insured against or insurable, the Loan Parties shall so restore and repair even though no Insurance Proceeds are received. Notwithstanding anything to the contrary set forth in Section 8.7, Xxxxxx agrees that Lender shall make the Net Restoration Proceeds (other than business interruption Insurance Proceeds, which shall be held and disbursed as provided in Section 8.7) available to the Loan Parties for restoration and repair of the Property or the other Collateral affected by the Casualty or Taking (a “Restoration”), as applicable, on the following provisions terms and subject to the Loan Parties’ satisfaction of the following conditions; provided, that Lender shall apply:have the right to waive any of the following conditions in its discretion:
(a) If At the Net Proceeds time of such Casualty or Taking, as applicable, and at all times thereafter there shall exist no Event of Default;
(b) The Property affected by the costs Casualty or Taking, as applicable, shall be capable of completing Restoration being restored (including replacements) to substantially the same condition, utility, quality and character, as existed immediately prior to such Casualty or Taking, as applicable, in all material respects with a fair market value and projected cash flow of the Property equal to or greater than prior to such Casualty or Taking, as applicable;
(c) the Loan Parties shall each be demonstrate to Lender’s reasonable satisfaction their ability to pay the Obligations coming due during such repair or restoration period (after taking into account proceeds from business interruption insurance carried by the Loan Parties);
(d) (i) in the event of a Casualty, the Casualty resulted in an actual or constructive loss of less than five percent (5%) 30% of the applicable Allocated Loan Amount for fair market value of the affected Individual Property and less than 30% of the usable area of the Property and (ii) in the event of a Taking, the Taking resulted in an actual or constructive loss of less than 15% of the fair market value of the Property and less than 15% of the usable area of the Property, then less than 15% of the Net Proceeds will be disbursed by land constituting the Property is taken, such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is the subject of such Taking;
(e) The Loan Parties shall have provided to Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met following, and Borrower delivers collaterally assigned the same to Lender a written undertaking pursuant to expeditiously commence assignment documents acceptable to Lender:
(i) an architect’s contract with an architect reasonably acceptable to Xxxxxx and complete plans and specifications for the Restoration of the Property lost or damaged to satisfactorily the condition, utility and value prior to the applicable Casualty; (ii) fixed-price or guaranteed maximum cost construction contracts with contractors reasonably acceptable to Lender for completion of the Restoration work in accordance with the aforementioned plans and specifications; (iii) such additional funds (if any) as are necessary from time to time, in Lender’s reasonable opinion, to complete with due diligence the Restoration (which funds shall be held by Xxxxxx as additional collateral securing the Obligations and shall be disbursed, if at all, pursuant to this Article V); and (iv) copies of all permits and licenses necessary to complete the Restoration in accordance with the terms of this Agreement.plans and specifications and all Legal Requirements;
(bf) If The Loan Parties shall commence such work within one hundred- twenty (120) days after such Casualty or Taking, as applicable, and shall diligently pursue such work to completion;
(g) Lender shall be satisfied that the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make completed on or before the Net Proceeds available for Restoration in accordance with the provisions earliest to occur of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant date six (6) months prior to Section 6.1 (a)(i)the Maturity Date, (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) such time as may be required under applicable Legal Requirements in order to repair and restore the net amount Property to the condition it was in immediately prior to such Casualty or such Taking, as applicable, (iii) the expiration of the Awardbusiness interruption insurance coverage referred to above, and (iv) the earliest date required pursuant to the terms of any Lease; and
(h) the Property and the use thereof after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, the Restoration will be in collecting same (“Condemnation Proceeds”), whichever the case may becompliance with all applicable Legal Requirements.
Appears in 1 contract
Samples: Loan Agreement
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than Two Million Five Hundred Thousand and 00/100 Dollars ($2,500,000.00) and the costs of completing the Restoration shall each be less than five percent Two Million Five Hundred Thousand and 00/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$2,500,000.00), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(iSections 6.4(b)(i)(A) and (C) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent Two Million Five Hundred Thousand and 00/100 Dollars (5%$2,500,000.00) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent Two Million Five Hundred Thousand and 00/100 Dollars (5%$2,500,000.00) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. Notwithstanding the immediately preceeding sentence, a portion of the Net Proceeds not to exceed Two Million Five Hundred Thousand and 00/100 Dollars ($2,500,000.00) shall be made available to Borrower after receipt thereof by Lender to pay or reimburse Borrower for any immediate and necessary repair or work required (i) to prevent further damage to the Property, (ii) to protect life or to provide safety or (iii) to restore hotel operations at the Property (collectively, the “Emergency Repairs”) provided all the conditions set forth in Sections 6.4(b)(i)(A) and (C) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Emergency Repairs in accordance with the terms of this Agreement. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i6.1(a)(i), (iv), (vi), (ixvii) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than the Casualty/Condemnation Threshold Amount and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyCasualty/Condemnation Threshold Amount, then the Net Proceeds (i) if the same are paid by the insurance company directly to Borrower, may be retained by Borrower or (ii) if the same are paid by the insurance company to Lender, will be disbursed by Lender to Borrower upon receipt, provided that all no Event of the conditions set forth in Section 6.4(b)(i) are met Default shall have occurred and be continuing and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Casualty/Condemnation Threshold Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either caseCasualty/Condemnation Threshold Amount, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i6.1(a)(i), (iv), (vi), (ixSection 6.1(a)(ix) and (xSection 6.1(a)(xi) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower Grantor upon receipt, provided that all of the 56 conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower Grantor delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, then in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.46.4(b). The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 shall mean: (ix) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (iiy) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"CONDEMNATION PROCEEDS"). whichever the case may be.
(i) The Net Proceeds shall be made available to Grantor for Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty, or (y) Grantor is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds”), and (x) 1ess than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land, or (y) Grantor is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property;
(C) Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be., shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense. The term "RENTABLE SPACE PERCENTAGE" shall mean (x) in the event the Net Proceeds are Insurance Proceeds, a percentage amount equal to fifty percent (50%) and (y) in the event the 57 Net Proceeds are Condemnation Proceeds, a percentage amount equal to fifty percent (50%);
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than One Hundred Thousand Dollars ($100,000) and the costs of completing the Restoration shall each be less than five percent One Hundred Thousand Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$100,000), then the Net Proceeds will be disbursed by Lender Mortgagees to Borrower Mortgagor upon receipt, provided that all of the conditions set forth in Section 6.4(b)(iSubsection 4.3(b)(i) are met and Borrower Mortgagor delivers to Lender each Mortgagee a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this AgreementSecurity Instrument.
(b) If the Net Proceeds are equal to or greater than five percent One Hundred Thousand Dollars (5%$100,000) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent One Hundred Thousand Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case$100,000), the Net Proceeds will be held by Lender and Lender Mortgagees shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4Subsection 4.3(b). The term “Net Proceeds” for purposes of this Section 6.4 4.3 shall mean: (i) the net amount of all insurance proceeds received by Lender the Mortgagees pursuant to Section 6.1 (a)(iSubsections 3.2(a)(i), (iv), (vi), ) and (ix) and (x) of this Security Instrument as a result of such damage or destructiondestruction (or any proceeds of self-insurance maintained in lieu of such insurance policies), after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of all awards and payments received by the AwardMortgagees with respect to a taking referenced in Section 3.5 of this Security Instrument, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
Samples: Mortgage, Security Agreement and Assignment of Leases and Rents (Ener1 Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than an amount equal to one percent (1%) of the outstanding principal amount of the Loan and the costs of completing the Restoration shall each be less than five an amount equal to one percent (51%) of the applicable Allocated Loan Amount for outstanding principal amount of the affected Individual PropertyLoan, then the Net Proceeds will be disbursed by Lender to Borrower and Property Owner upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers and Property Owner deliver to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five an amount equal to one percent (51%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) outstanding principal amount of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five an amount equal to one percent (51%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) outstanding principal amount of the applicable Allocated Loan Amount for the affected Individual PropertyLoan, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration (or reimbursement to Borrower and Property Owner for the cost of Restoration actually incurred prior to the date such Net Proceeds were available) in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 6.1(a)(i), (a)(iiii), (iv), (vi), (ix) and (xix) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
Samples: Loan Agreement (ESH Hospitality LLC)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with any Restoration:
(ai) If the Net Proceeds shall be less than the Net Proceeds Threshold and the costs of completing Restoration shall each be less than five percent (5%) the Net Proceeds Threshold, and provided no Event of the applicable Allocated Loan Amount for the affected Individual PropertyDefault shall have occurred and be continuing, then the Net Proceeds will be disbursed by Lender to Borrower upon receiptreceipt (or if not yet received, Lender shall permit such Net Proceeds to be disbursed directly to Borrower), provided that all of the conditions set forth in Section 6.4(b)(i6.2(E)(ii)(a)(6) and (8) are met satisfied in all material respects and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence Restoration in accordance with the terms of this AgreementAgreement and the conditions set forth in Section 6.2(E)(ii)(a)(6), (7) and (8).
(bii) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual PropertyNet Proceeds Threshold, or the costs of completing Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either caseNet Proceeds Threshold, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for Restoration in accordance with the provisions of this Section 6.46.2. The term “Net Proceeds” for purposes of this Section 6.4 6.2(E) shall mean: (ia) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable out-of-pocket costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (iib) the net amount of the Awardaward, after deduction of Lender’s reasonable out-of-pocket costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to the applicable Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, then in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.46.4(b). The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 shall mean: ; (ix) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (iiy) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.,
(i) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds, and (x) less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property;
(C) Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to the applicable Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, then in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.46.4(b). The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 shall mean: (ix) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (iiy) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"CONDEMNATION PROCEEDS"). whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds”), and (x) less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property;
(C) Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be., shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense. The term "RENTABLE SPACE PERCENTAGE" shall mean (x) in the event the Net Proceeds are Insurance Proceeds, a percentage amount equal to fifty percent (50%) and (y) in the event the Net Proceeds are Condemnation Proceeds, a percentage amount equal to fifty percent (50%);
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of any Parcel:
(a) If the Net Proceeds shall be less than $250,000 and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property$250,000, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i8.4(b)(i) are met (except for Section 8.1(b)(i)(J)) and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement; provided, however, with respect to the budget delivered to Lender pursuant to Section 8.4(b)(i)(I), such budget is not subject to the prior approval of Lender.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, $250,000 or the costs of completing the Restoration are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property$250,000, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration subject to the conditions of and in accordance with the provisions of this Section 6.48.4. The term “Net Proceeds” for purposes of this Section 6.4 8.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i8.1(a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destructiona Casualty, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting the same (“Insurance Proceeds”), or (ii) the net amount of the AwardAward as a result of a Condemnation, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting the same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
Samples: Loan Agreement (Sun Communities Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration:
(a) If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRestoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all each of the conditions set forth in Section 6.4(b)(i6.4(b)(i)(A), (B), (D), (F)(2), (3) and (4), (G), (H) and (I) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either caseRestoration Threshold, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
(i) Subject to the provisions of Section 6.4(a) above, the Net Proceeds shall be made available to Borrower for Restoration upon the approval of Lender in its reasonable discretion that the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, either (x) less than thirty percent (30%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such Casualty or (y) the costs of completing the Restoration are less than forty percent (40%) of the full replacement cost, or (2) in the event the Net Proceeds are Condemnation Proceeds, less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land;
(C) intentionally omitted;
(D) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after such Casualty or Condemnation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;
(E) Lender shall be satisfied that any operating deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the Property as a result of the occurrence of any such Casualty or Condemnation, whichever the case may be, will be covered out of the aggregate amount of (l) the Net Proceeds, (2) the insurance coverage referred to in Section 6.l(a)(iii), if applicable, and (3) by other funds of Borrower;
(F) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) three (3) months prior to the Maturity Date (as may be extended), (2) the earliest date required for such completion under the terms of the Management Agreement, (3) such time as may be required under applicable Legal Requirements or (4) the expiration of the insured period provided by the insurance coverage referred to in Section 6.1(a)(iii);
(G) the Property and the use thereof after the Restoration will be in compliance in all material respects with and permitted under all applicable Legal Requirements;
(H) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements;
(I) such Casualty or Condemnation, as applicable, does not result in the loss of access to the Property or the related Improvements;
(J) intentionally omitted;
(K) the Loan-to-Value Ratio, after giving effect to the Restoration, shall be equal to or less than eighty percent (80%);
(L) Borrower shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget shall be reasonably acceptable to Lender; and
(M) the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s reasonable discretion to cover the cost of the Restoration.
(ii) In the event the Net Proceeds are equal to or exceed the Restoration Threshold, the Net Proceeds shall be held by Lender in an interest-bearing account and, until disbursed in accordance with the provisions of this Section 6.4(b), shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence reasonably satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the Restoration have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property arising out of the Restoration which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.
(iii) In the event the Net Proceeds are equal to or exceed the Restoration Threshold, all plans and specifications required in connection with the Restoration shall be subject to prior reasonable approval by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration the cost of which is greater than $25,000, as well as the contracts under which they have been engaged, shall be subject to prior review and reasonable acceptance by Lender and the Casualty Consultant. All out-of-pocket costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower.
(iv) In the event the Net Proceeds are equal to or exceed the Restoration Threshold, in no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Casualty Retainage. The term “Casualty Retainage” shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until the Restoration has been completed. The Casualty Retainage shall be reduced to five percent (5%) of the costs incurred for work upon receipt by Lender of reasonably satisfactory evidence that fifty percent (50%) of the Restoration has been completed. The Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 6.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Casualty Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 6.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence reasonably satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage; provided, however, that Lender will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and Lender receives an endorsement to the Title Insurance Policy insuring the continued priority of the lien of the Mortgage and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Casualty Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than One Hundred Thousand and 00/100 Dollars ($100,000.00) and the costs of completing the Restoration shall each be less than five percent One Hundred Thousand and 00/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$100,000.00), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(iSubsection 4.3(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this AgreementSecurity Instrument.
(b) If the Net Proceeds are equal to or greater than five percent One Hundred Thousand and 00/100 Dollars (5%$100,000.00) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are equal to or greater than five percent One Hundred Thousand and 00/100 Dollars (5%$100,000.00) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4Subsection 4.3(b). The term “Net Proceeds” for purposes of this Section 6.4 4.3 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(iSubsections 3.2(a)(i), (iv), (vi), (ix) and (xviii) of this Security Instrument as a result of such damage or destructiondestruction (or any proceeds of self-insurance maintained in lieu of such insurance policies), after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Awardall awards and payments received by Lender with respect to a taking referenced in Section 3.5 of this Security Instrument, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for the Restoration provided that each of the following conditions are met: (A) no Event of Default shall have occurred and be continuing under the Note, this Security Instrument or any of the other Loan Documents; (B) (1) in the event the Net Proceeds are Insurance Proceeds, less than fifty percent (50%) of the total floor area of the Improvements has been damaged, destroyed, or rendered unusable as a result of such fire or other casualty or (2) in the event the Net Proceeds are Condemnation Proceeds, less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property; (C) Leases demising in the aggregate a percentage amount equal to or greater than fifty percent (50%) (with respect to casualties) or ninety percent (90%) (with respect to condemnation) of the total net rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty, as the case may be, shall remain in full force and effect during and after the completion of the Restoration; (D) Borrower shall have commenced the Restoration as soon as reasonably practicable (but in no event later than ninety (90) days after such damage or destruction or taking, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion; (E) Lender shall be satisfied that any operating deficits, including all scheduled payments of principal and interest under the Note at the Applicable Interest Rate (as defined in the Note), which will be incurred with respect to the Property as a result of the occurrence of any such fire or other casualty or taking, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Subsection 3.2(a)(iii), if applicable, or (3) by other funds of Borrower; (F) Lender shall be satisfied that following the completion of the Restoration, the ratio of sustainable net cash flow for the Property (after deduction for underwritten reserves) to debt service payable under the Note shall be at least 1.40 to 1.0 (G) Lender shall be reasonably satisfied that the Restoration will be completed on or before the earliest to occur of (1) twelve (12) months prior to the Maturity Date (as defined in the Note), (2) twelve (12) months after the occurrence of such fire or other casualty or taking, whichever the case may be, (3) the earliest date required for such completion under the terms of any Leases which are required in accordance with the provisions of this Subsection 4.3(b) to remain in effect subsequent to the occurrence of such fire or other casualty or taking, whichever the case may be, and the completion of the Restoration or (4) such time as may be required under any applicable zoning laws, ordinances, rules or regulations in order to repair and restore the Property to the condition it was in immediately prior to such fire or other casualty or to as nearly as possible the condition it was in immediately prior to such taking, as applicable; (H) the Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable zoning laws, ordinances, rules and regulations; (I) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable laws, rules and regulations; and (J) such fire or other casualty or taking, as applicable, does not result in the loss of access to the Property or the Improvements.
(ii) The Net Proceeds shall be held by Lender and, until disbursed in accordance with the provisions of this Subsection 4.3(b), shall constitute additional security for the Obligations. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the Restoration have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property arising out of the Restoration which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company insuring the lien of this Security Instrument.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and approval in all respects by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”), which approval shall not be unreasonably withheld or delayed. Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Casualty Consultant, which approval shall not be unreasonably withheld or delayed. All reasonable costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the reasonable Casualty Consultant’s fees, shall be paid by Borrower.
(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Casualty Retainage. The term “Casualty Retainage” as used in this Subsection 4.3(b) shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until the Restoration has been completed. The Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Subsection 4.3(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Casualty Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Subsection 4.3(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence reasonably satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage, provided, however, that Lender will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, and the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company insuring the lien of this Security Instrument. If required by Lender, the release of any such portion of the Casualty Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Secured Investment Resources Fund Lp Ii)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, then in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.46.4(b). The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (ix) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (iiy) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), ) whichever the case may be.
Appears in 1 contract
Samples: Loan Agreement (Inland American Real Estate Trust, Inc.)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Relevant Restoration Threshold and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are 52 met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, Relevant Restoration Threshold or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyRelevant Restoration Threshold, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, then in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.46.4(b). The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 shall mean: (ix) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (xviii) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (iiy) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, and (x) less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property, or (2) in the event the Net Proceeds are Condemnation Proceeds, and (x) less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land, or (y) Borrower is required under a Lease exceeding the Relevant Leasing Threshold to use the Net Proceeds for the restoration of the Property;
(C) Leases demising in the aggregate a percentage amount equal to or greater than the Rentable Space Percentage of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense. The term "RENTABLE SPACE PERCENTAGE" shall mean (x) in the event the Net Proceeds are Insurance Proceeds, a percentage amount equal to fifty percent (50%) and (y) in the event the Net Proceeds are Condemnation Proceeds, a percentage amount equal to fifty percent (50%);
Appears in 1 contract
Samples: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration:
(a) If the Net Proceeds shall be less than the Threshold Amount and the costs of completing the Restoration shall each be less than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual PropertyThreshold Amount, then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual PropertyThreshold Amount, or the costs of completing the Restoration are is equal to or greater than five percent (5%) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either caseThreshold Amount, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “"Net Proceeds” " for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"Insurance Proceeds”"), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“"Condemnation Proceeds”"), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for Restoration upon the approval of Lender in its sole discretion that the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, less than twenty-five percent (25%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such Casualty or (2) in the event the Net Proceeds are Condemnation Proceeds, less than ten percent (10%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements is located on such land;
(C) Leases demising in the aggregate a percentage amount equal to or greater than ninety percent (90%) of the total rentable space in the Property which has been demised under executed and delivered Leases in effect as of the date of the occurrence of such Casualty or Condemnation, whichever the case may be, shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and will make all necessary repairs and restorations thereto at their sole cost and expense;
(D) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after such Casualty or Condemnation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion;
(E) Lender shall be satisfied that any operating deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the Property as a result of the occurrence of any such Casualty or Condemnation, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 6.1(a)(iii), if applicable, or (3) by other funds of Borrower;
(F) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Maturity Date, (2) the earliest date required for such completion under the terms of any Leases, (3) such time as may be required under applicable Legal Requirements or (4) the expiration of the insurance coverage referred to in Section 6.1(a)(iii);
(G) the Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal Requirements;
(H) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements;
(I) such Casualty or Condemnation, as applicable, does not result in the loss of access to the Property or the related Improvements;
(J) the Debt Service Coverage Ratio for the affected Property, after giving effect to the Restoration, shall be equal to or greater than 1.60 to 1.0;
(K) the Loan to Value Ratio after giving effect to the Restoration, shall be equal to or less than seventy-five percent (75%);
(L) Borrower shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget shall be acceptable to Lender; and
(M) the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to cover the cost of the Restoration.
(ii) The Net Proceeds shall be held by Lender in an interest-bearing account and, until disbursed in accordance with the provisions of this Section 6.4(b), shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work and labor performed in connection with the then-requested disbursements and all previous disbursements (except to the extent that they are to be paid for out of the requested disbursement) in connection with the Restoration have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the "Casualty Consultant"). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Casualty Consultant. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be paid by Borrower.
(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Casualty Retainage. The term "Casualty Retainage" shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until the Restoration has been completed. The Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 6.4(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Casualty Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 6.4(b) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate governmental and quasi-governmental authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage; provided, however, that Lender will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor’s, subcontractor’s or materialman’s contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and Lender receives an endorsement to the Title Insurance Policy insuring the continued priority of the lien of the related Mortgage and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Casualty Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.
Appears in 1 contract
Restoration. If there are any Improvements on the Property, the The following provisions ----------- shall applyapply in connection with the application of Net Proceeds to the Restoration of any Individual Property:
(a) If the Net Proceeds shall be less than Fifty Thousand and No/100 Dollars ($50,000) and the costs of completing the Restoration shall each be less than five percent Fifty Thousand and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$50,000), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i5.3(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent Fifty Thousand and No/100 Dollars (5%$50,000) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are is equal to or greater than five percent Fifty Thousand and No/100 Dollars (5%$50,000) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with provided that the provisions conditions of this Section 6.45.3 have been satisfied. The term “Net Proceeds” "NET PROCEEDS" for purposes of this Section 6.4 5.3 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 5.1 (a)(i), (iv), (vi), (ixvii) and (xix) (if applicable) as a result of such damage or destruction, after deduction of Lender’s the reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”"INSURANCE PROCEEDS"), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”"CONDEMNATION PROCEEDS"), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for Restoration provided that the Net Proceeds are received prior to the Anticipated Payment Date and each of the following conditions are met: (A) no Event of Default shall have occurred and be continuing; (B) (1) in the event the Net Proceeds are Insurance Proceeds, less than fifty percent (50%) of the total floor area of the Improvements of the Individual Property has been damaged, destroyed or rendered unusable as a result of such fire or other casualty or (2) in the event the Net Proceeds are Condemnation Proceeds, less than ten percent (10%) of the land constituting the Individual Property is taken, and such land is located along the perimeter or periphery of the Individual Property, and no portion of the Improvements is located in such land; (C) the Operating Lease, if any, for such Individual Property shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be; (D) the Franchise Agreement, if any, for such Individual Property shall remain in full force and effect during and after the completion of the Restoration, notwithstanding the occurrence of any such fire or other casualty or taking, whichever the case may be; (E) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than sixty (60) days after such damage or destruction or taking, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory completion; (F) Lender shall be satisfied that any operating deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the Individual Property as a result of the occurrence of any such fire or other casualty or taking, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section 5.1(a)(iii), if applicable, or (3) by other funds of Borrower; (G) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the Anticipated Payment Date, (2) the earliest date required for such completion under the terms of any Operating Lease or Franchise Agreement, (3) such time as may be required under applicable zoning law, ordinance, rule or regulation in order to repair and restore the applicable Individual Property to the condition it was in immediately prior to such fire or other casualty or to as nearly as possible the condition it was in immediately prior to such taking, as applicable or (4) the expiration of the insurance coverage referred to in Section 5.1(a)(iii); (H) the Individual Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable zoning laws, ordinances, rules and regulations and all necessary operating or reciprocal easement agreements for the operation and maintenance of the applicable Individual Property are, or remain, in effect; (I) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance in all material respects with all applicable governmental laws, rules and regulations (including, without limitation, all applicable environmental laws); (J) such fire or other casualty or taking, as applicable, does not result in the loss of access to the Individual Property or the related Improvements after the completion of Restoration; (K) after giving effect to such Restoration, the Debt Service Coverage Ratio for the Individual Property shall be equal to the greater of (i) the Debt Service Coverage Ratio for the twelve (12) full calendar months immediately preceding the Closing Date, and (ii) the Debt Service Coverage Ratio for the Individual Property for the twelve (12) full calendar months immediately preceding the casualty or Condemnation of the Individual Property; and (L) Lender shall be satisfied that the ratio of the appraised value of the Individual Property to the Release Amount, as determined by Lender, upon the completion of the Restoration, is not greater than the lesser of the ratio of the appraised value of the Individual Property to the Release Amount determined by Lender as of (i) the date hereof or (ii) the date immediately preceding the casualty or Condemnation to such Individual Property.
(ii) The Net Proceeds shall be held by Lender in an interest-bearing account and, until disbursed in accordance with the provisions of this Section 5.3(b), shall constitute additional security for the Debt and other obligations under the Loan Documents. The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the Restoration have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic's or materialman's liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Individual Property arising out of the Restoration which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company issuing the title insurance policy.
(iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender (the "CASUALTY CONSULTANT"). Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, subcontractors and materialmen with contracts in excess of $150,000 engaged in any Restoration, as well as the contracts under which they have been engaged, shall be subject to prior review and acceptance by Lender and the Casualty Consultant; provided, however, that in the event Lender or its Casualty Consultant fails to respond to a request for approval of any such contractors, subcontractors, materialmen and contracts within ten (10) Business Days following Lender's receipt of all documentation required hereunder, then the requirement for any such approval with respect to such item shall be deemed waived. All reasonable costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees and disbursements and the Casualty Consultant's fees, shall be paid by Borrower.
(iv) In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, minus the Casualty Retainage. The term "CASUALTY RETAINAGE" shall mean an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the Restoration, as certified by the Casualty Consultant, until the Restoration has been completed. The Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this Section 5.1(b), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The Casualty Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 5.1(b) and that all approvals necessary for the re-occupancy and use of the Individual Property have been obtained from all appropriate governmental and quasi- governmental authorities, and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage; provided, however, -------- ------- that Lender will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which the Casualty Consultant certifies to Lender that the contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of the contractor's, subcontractor's or materialman's contract, the contractor, subcontractor or materialman delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by Lender or by the title company issuing the title insurance policy, and Lender receives an endorsement to the title insurance policy insuring the continued priority of the lien of the related Mortgage and evidence of payment of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Casualty Retainage shall be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman.
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Samples: Loan Agreement (Winston Hotels Inc)
Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with any Restoration:
(a) If the Net Proceeds shall be less than Five Hundred Thousand and No/100 Dollars ($500,000.00) and the costs of completing Restoration shall each be less than five percent Five Hundred Thousand and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$500,000.00), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent Five Hundred Thousand and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$500,000.00), but less than twenty percent Six Million and No/100 Dollars (20%) of the applicable Allocated Loan Amount for the affected Individual Property$6,000,000.00), or the costs of completing Restoration are is equal to or greater than five percent Five Hundred Thousand and No/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$500,000.00), but less than twenty percent Six Million and No/100 Dollars (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case$6,000,000.00), the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
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Restoration. If there are any Improvements on the Property, the The following provisions shall applyapply in connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Two Million Five Hundred Thousand and 00/100 Dollars ($2,500,000.00) and the costs of completing the Restoration shall each be less than five percent Two Million Five Hundred Thousand and 00/100 Dollars (5%) of the applicable Allocated Loan Amount for the affected Individual Property$2,500,000.00), then the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 6.4(b)(i) hereof are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than five percent Two Million Five Hundred Thousand and 00/100 Dollars (5%$2,500,000.00) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, or the costs of completing the Restoration are equal to or greater than five percent Two Million Five Hundred Thousand and 00/100 Dollars (5%$2,500,000.00) of the applicable Allocated Loan Amount for the affected Individual Property, but less than twenty percent (20%) of the applicable Allocated Loan Amount for the affected Individual Property, then, in either case, the Net Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi), (ix) and (x) as a result of such damage or destruction, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the Award, after deduction of Lender’s its reasonable costs and expenses (including, but not limited to, reasonable counsel costs and fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case may be.
Appears in 1 contract
