Restoration. The following provisions shall apply in connection with the Restoration of the Property: (a) Subject to Section 7.4(c) hereof, if the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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. The following provisions shall apply in connection with the Restoration of the Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) ~~Subject to Section 7.4(c) hereof~~Unless the terms of the Walgreen Lease require that Net Proceeds be used for the restoration of the Walgreen Property, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A) no Event of Default shall have occurred and be continuing; (B) Unless the terms of an Existing Lease require that Net Proceeds be used for the restoration of the affected Individual Property, (1) in the event the Net Proceeds are insurance proceeds, less than thirty percent (30%) of each of (i) the fair market value of the affected Individual Property as reasonably determined by Lender, and (ii) the rentable area of the affected 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 fair market value of the affected Individual Property as reasonably determined by Lender and (ii) the rentable area of the affected Individual Property is taken, such land is located along the perimeter or periphery of the affected Individual Property, no portion of the Improvements is located on such ~~land~~ land, and such taking does not materially impair the existing access to the affected Individual Property; (C) Leases demising in the aggregate a percentage amount equal to or greater than 75% of the total rentable space in the affected 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 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~~ ninety (3090) days after the issuance of a building permit with respect ~~thereto~~thereto or as required by the applicable Lease, whichever is earlier) and shall diligently pursue the same to satisfactory completion in compliance with all ~~applicable Legal Requirements~~Applicable Laws, in all material respects, including, without limitation, all applicable Environmental Laws; (E) Unless the terms of an Existing Lease require that Net Proceeds be used for the restoration of the affected Individual Property, 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~~ Unless the terms of an Existing Lease require that ~~the~~ Net Proceeds ~~together with any cash or cash equivalent deposited by Borrower with Lender are sufficient to cover~~ be used for the ~~cost~~ restoration of the ~~Restoration; (G)~~ affected Individual Property, Lender shall be satisfied that, upon the completion of the Restoration, the fair market value and cash flow of the affected Individual Property will not be less than the fair market value and cash flow of the affected Individual Property as the same existed immediately prior to the applicable Casualty or Condemnation (assuming the affected portion of the affected Individual Property is relet within a reasonable period after the date of such Casualty or Condemnation); (HG) 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~~ Anticipated Repayment 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 Major Leases, (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, (3) such time as may be required under applicable zoning law, ordinance, rule or regulation in order to repair and restore the affected Individual Property to the condition it was in immediately prior to such fire or other casualty or taking, or (4) the earliest date required for such completion under the terms of any Material Agreements or REA; (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 shall guaranty to Lender the lien-free completion by Borrower of the Restoration in accordance with the provisions of this Subsection 7.4(b); (JH) the affected Individual Property and the use thereof after the Restoration will be in compliance with and permitted under any REA, any Material Agreements and all ~~applicable Legal Requirements~~Applicable Law; (KI) the Restoration shall be done and completed in an expeditious and diligent fashion and in compliance with any REA, any Material Agreements and all ~~applicable Legal Requirements; (L) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA~~Applicable Law; and (MJ) 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~~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 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 (not to be unreasonably withheld) and by an independent consulting engineer selected by Lender (the “Casualty Consultant”). ~~Lender shall have the use of the~~ All such plans and specifications and all permits, licenses and approvals required or obtained in connection with the ~~Restoration~~Restoration shall be assigned to Lender as additional collateral for the Loan and Lender shall have the use of the same. 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~~ Consultant (not to be unreasonably ~~withheld or delayed~~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~~ Section 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~~ Section 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~~ Section 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, Loan Agreement (Consolidated Tomoka Land Co)

Restoration. The following provisions shall apply in connection with the Restoration of the Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, then provided that no Event of Default has occurred and is continuing and the condition in Section 9.6 hereof has been satisfied, subject to Section 5.5 hereof, the Net Proceeds will be disbursed by Lender to Borrower upon receipt~~, provided that all~~ . Promptly after receipt of the ~~conditions set forth in Section 7.4(b)(i) are met and~~ Net Proceeds, Borrower ~~delivers to Lender a written undertaking to expeditiously~~ shall commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement. If any Net Proceeds are received by Borrower and may be retained by Borrower pursuant to the terms hereof, such Net Proceeds shall, until completion of the Restoration, be held for the benefit of Lender and shall be segregated from other funds of Borrower to be used to pay for the cost of Restoration in accordance with the terms hereof. (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, subject to Section 5.5 hereof, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section ~~7.4~~5.4(b). (i) The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A) no Event of Default shall have occurred and be ~~continuing~~continuing beyond any applicable notice and/or cure periods; (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~~ fifteen percent (1015%) of each of (i) the fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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~~5.1(a)(iii) above, or (3) by other funds of Borrower; (F) Lender shall be satisfied that the Net ~~Proceeds~~ Proceeds, together with any cash or cash equivalent deposited by Borrower with ~~Lender~~ 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~~ nine (69) 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 ~~Major Leases~~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~~5.1(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~~5.4(b); (J) the Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal ~~Requirements~~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~~Requirements and the Property Documents; (L) ~~Lender shall be satisfied,~~ the Property Documents will remain in ~~its sole~~ full force and ~~absolute discretion, that~~ effect during and after the Restoration and a Property Document Event shall not occur as a result of the ~~Property will not be limited or restricted by the terms of the ZLDA~~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 (including, without limitation, satisfaction of the condition in Section 9.6 hereof) 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~~5.4(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”), such acceptance not to 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, such acceptance not to be unreasonably ~~withheld or delayed~~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~~exists beyond any applicable notice and/or cure period, (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~~exists beyond any applicable notice and/or cure period, 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~~5.4(b) shall mean the lesser of (a) 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, and (b) the maximum amount permitted by applicable Legal Requirements, in each case, 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~~5.4(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~~5.4(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 (Medalist Diversified REIT, Inc.), Loan Agreement (Medalist Diversified REIT, Inc.)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c~~If any Net Award is in excess of $500,000, Landlord (or Lender if required by any Mortgage) ~~hereof, if~~ shall hold the entire Net ~~Proceeds shall be less than~~ Award in a fund (the “Restoration Fund”) and disburse amounts from the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund only in accordance with the terms of this Agreement. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.following conditions: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ prior to commencement of ~~the following conditions are met:~~ restoration, (A) the architects, contracts, contractors, plans and specifications and a budget for the restoration shall have been approved by Landlord, (B) Landlord and Lender shall be provided with mechanics’ lien insurance (if available) (C) if required by lender or if the estimated cost of the restoration exceeds the anticipated Net Award by more than $1,000,000 an acceptable performance and payment bond, letter of credit or such other security satisfactory to Landlord which insures satisfactory completion of and payment for the restoration, are in an amount and form and have a surety acceptable to Landlord, and, if applicable, shall name Landlord and Lender as additional dual obligees or beneficiaries, and (D) to the extent permitted under applicable Law, appropriate waivers of mechanics’ and materialmen’s liens shall have been obtained and/or filed; (ii) at the time of any disbursement, no Event of Default shall exist and no mechanics’ or materialmen’s liens shall have ~~occurred~~ been filed against any of the Leased Premises and ~~be continuing~~remain undischarged; (iii) disbursements shall be made from time to time in an amount not exceeding the cost of the work completed since the last disbursement, upon receipt of (A) satisfactory evidence, including architects’ certificates, of the stage of completion, the estimated total cost of completion and performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (1C) contractors’ and subcontractors’ sworn statements as to completed work and the cost thereof for which payment is requested, (D) a satisfactory bringdown of title insurance and (E) other evidence of cost and payment so that Landlord can verify that the amounts disbursed from time to time are represented by work that is completed, in place and free and clear of mechanics’ and materialmen’s lien claims; (iv) each request for disbursement shall be accompanied by a certificate of Tenant, signed by the ~~event~~ president or a vice president of Tenant, describing the ~~Net Proceeds are insurance proceeds~~work for which payment is requested, ~~less than thirty percent (30%) of each of (i) fair market value~~ stating the cost incurred in connection therewith, stating that Tenant has not previously received payment for such work and, upon completion of the ~~Property as reasonably determined by Lender~~work, ~~and (ii) rentable area of~~ also stating that the ~~Property~~ work has been ~~damaged, destroyed or rendered unusable as a result~~ fully completed and complies with the applicable requirements of ~~a Casualty or~~ this Lease; (2v) ~~in the event the Net Proceeds are condemnation proceeds, less than~~ Landlord may retain ten percent (10%) of ~~each of (i)~~ the ~~fair market value of~~ restoration fund until the ~~Property as reasonably determined by Lender and (ii) rentable area of the Property~~ restoration is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Propertyfully completed; (Cvi) ~~Leases demising~~ if the Restoration Fund is held by Landlord, the Restoration Fund shall not be commingled with Landlord’s other funds and shall bear interest at a rate agreed to by Landlord and Tenant; and (vii) such other reasonable conditions as Landlord or Lender may impose. (b) Prior to commencement of restoration and at any time during restoration, if the estimated cost of completing the restoration work free and clear of all liens, as determined by Landlord’s Consultant using industry guidelines and standards, exceeds the amount of the Net Award available for such restoration, the amount of such excess shall, upon demand by Landlord, be paid by Tenant to Landlord to be added to the Restoration Fund. Any sum so added by Tenant which remains in the ~~aggregate a percentage amount equal~~ Restoration Fund upon completion of restoration shall be refunded to ~~or greater than 75%~~ Tenant. For purposes of determining the ~~total rentable space in~~ source of funds with respect to the ~~Property which has been demised under executed and delivered Leases in effect as~~ disposition 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~~ funds remaining after the completion of restoration, the ~~Restoration, notwithstanding~~ Net Award shall be deemed to be disbursed prior to any amount added by Tenant. (c) If any sum remains in 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 Restoration Fund after ~~the~~ completion of the ~~Restoration;~~ restoration and any refund to Tenant pursuant to Paragraph 19(b), such sum (Dthe “Remaining Sum”) ~~Borrower~~ shall ~~commence~~ be retained by Landlord or, if required by a Note or Mortgage, paid by Landlord to a Lender. If the Remaining Sum is (i) retained by Landlord, each installment of Basic Rent payable on 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 Retention Date shall be ~~satisfied that any operating deficits~~ reduced by a fraction, the denominator of which ~~will~~ shall be ~~incurred with respect~~ the total amount of all Basic Rent due from such date to and including the ~~Property as a result~~ last Basic Rent Payment Date for the then existing Term and the numerator of which shall be 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~~Remaining Sum, or (3ii) ~~by other funds~~ paid to Lender, then each installment of ~~Borrower; (F) Lender~~ Basic Rent thereafter payable 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 reduced in the same ~~existed immediately prior~~ amount as payments are reduced under any Note if the Loan corresponding to such Note is reamortized to reflect such payment, in each case until such Remaining Sum has been applied in full or until 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~~Term has expired, (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 Major Leases, (4) such time as may be required under applicable Legal Requirements or (5) whichever occurs first. Upon 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 shall 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) Lender shall be satisfiedTerm, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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~~ Remaining Sum 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 not been so applied shall be ~~approved~~ retained by ~~the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman~~Landlord.

Appears in 1 contract

Samples: Lease Agreement (Danka Business Systems PLC)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject~~ Borrower shall restore and repair the Improvements and Equipment or any part thereof damaged or destroyed by any Casualty or affected by any Taking. (b) Notwithstanding anything to ~~Section 7.4(c~~the contrary contained herein, if the Restoration Proceeds, less the amount of Lender's actual out-of-pocket costs and expenses (including attorneys' fees and costs) ~~hereof~~incurred in collecting the same (the "Net Restoration Proceeds"), are $750,000 or less (the "Restoration Proceeds Threshold"), provided no Event of Default then exists, Lender shall distribute such Net Restoration Proceeds to Borrower for Restoration promptly following Lender's receipt thereof. (c) Notwithstanding anything to the contrary contained herein, if the Net Restoration Proceeds exceed the Restoration Proceeds Threshold, Lender agrees that Lender shall make the Net Restoration Proceeds (other than business interruption insurance proceeds, which shall be ~~less than the Restoration Threshold~~ held and ~~the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be~~ disbursed ~~by Lender~~ as provided in Section 7.7) available to Borrower ~~upon receipt~~for Borrower's restoration and repair of the Improvements, ~~provided that all~~ Equipment and Inventory affected by the Casualty or Taking (a "Restoration"), as applicable, on the following terms and subject to Borrower's satisfaction of the following conditions and the conditions set forth in Section ~~7.4(b)(i~~7.9 provided, that Lender shall have the right to waive any of the following conditions in its sole discretion: (i) The Restoration Proceeds are ~~met~~ deposited with Lender; LOAN AGREEMENT 46 Loan No. 374-1407 (ii) The insurer does not deny liability to any named insured; (iii) At the time of such Casualty or Taking, as applicable, and at all times thereafter there shall exist no Event of Default; (iv) Lender shall have received written notice of damage or Casualty from Borrower ~~delivers~~ within ten (10) days from the date of such damage or Casualty, which notice shall state the date of such damage or Casualty, and shall contain a request to Lender ~~a written undertaking~~ to ~~expeditiously commence and to satisfactorily complete with due diligence~~ make the Restoration Proceeds available to Borrower; (v) Lender shall have received a report or proof of claim from the insurer describing the damage or Casualty and the insurer's payment therefor; (vi) The Improvements, Equipment and Inventory affected by the Casualty or Taking, as applicable, shall be capable of being restored (including replacements) in accordance with all applicable Legal Requirements, to substantially the ~~terms~~ 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 ~~this Agreement. (b) Subject to Section 7.4(c) hereof, if~~ the ~~Net Proceeds are~~ Property equal to or greater than ~~the Restoration Threshold~~ prior to such Casualty or ~~the costs of completing the Restoration are equal to or greater than the Restoration Threshold~~Taking, ~~Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.~~as applicable; (ivii) ~~The Net Proceeds~~ Borrower shall ~~be made available~~ demonstrate to Lender's satisfaction that such repair or restoration is feasible and that Borrower has the ability to pay the Indebtedness, all payments for ~~Restoration provided that each~~ Impositions and insurance required pursuant to Section 3.2 and all Operating Expenses, to the extent any portion of the ~~following conditions are met:~~foregoing shall become due during such repair or restoration period (after taking into account proceeds from business interruption insurance carried by Borrower), as estimated by Lender; (A) ~~no Event of Default shall have occurred and be continuing; (B) (1)~~ in the event of a Casualty, the ~~Net Proceeds are insurance proceeds,~~ Casualty resulted in an actual or constructive loss of 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~~ Property; (2B) in the event of a Taking, the ~~Net Proceeds are condemnation proceeds,~~ Taking resulted in an actual or constructive loss of less than ~~ten~~ twenty-five percent (1025%) of ~~each of (i)~~ the ~~fair market value of the Property as reasonably determined by Lender and (ii) rentable area of~~ Land pertaining to the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is ~~located on~~ the subject of such ~~land~~ Taking and ~~such taking does not materially impair the existing access~~ sufficient parking shall remain to ~~the Property;~~ comply with all Leases and applicable Legal Requirements; (C) all 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 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 will remain in full force and effect during and after the Restoration; and (D) Leases covering at least seventy-five percent (75%) of the rentable square footage of the Property will remain in full force and effect during and after such Restoration and there shall be sufficient business interruption proceeds (or other funds from Borrower deposited into a reserve with Lender in an amount determined by Lender) with regard to continue to make debt service payments under the Loan and continue to pay all Operating Expenses; LOAN AGREEMENT 47 Loan No. 374-1407 (ix) Borrower shall have provided to Lender all of the following, and collaterally assigned the same to Lender pursuant to assignment documents acceptable to Lender acceptable to Lender if such documents are warranted (as determined by Lender in its reasonable discretion) based on the actual damage to the Property: (A) an architect's contract with an architect reasonably acceptable to Lender and complete final plans and specifications for the Restoration of the Improvements, Equipment and Inventory lost or damaged to the same condition, utility and value of the Property that existed prior to the Casualty or Taking; (B) an estimate of the cost of repair and restoration; (C) a certificate of the architect as to such costs; (D) fixed-price or guaranteed maximum cost construction contracts with contractors reasonably acceptable to Lender for completion of the ~~Restoration, notwithstanding~~ Restoration work in accordance with the ~~occurrence~~ aforementioned plans and specifications; (E) a bond of ~~any such Casualty~~ completion or ~~Condemnation, whichever the case may be, and Borrower furnishes to Lender~~ other evidence satisfactory to Lender ~~that~~ of Borrower's ability to pay such excess costs, or such additional funds (if any) as are necessary from time to time, in Lender's opinion, to complete the Restoration (which funds shall be held by Lender as additional Collateral securing the Indebtedness and shall be disbursed, if at all, pursuant to this Article 7); and (F) copies of all ~~Tenants under Major Leases shall continue~~ permits and licenses necessary to ~~operate their respective space at~~ complete the ~~Property after~~ Restoration in accordance with the ~~completion of the Restoration~~plans and specifications and all Legal Requirements; (Dx) Borrower shall commence such work within one hundred twenty (~~or shall cause the commencement of) the Restoration as soon as reasonably practicable (but in no event later than thirty (30~~120) days after ~~the issuance of a building permit with respect thereto)~~ such Casualty or Taking (which commencement shall be evidenced by applying for all necessary construction permits), as applicable, and shall diligently pursue ~~the same~~ such work to ~~satisfactory completion in compliance with all applicable Legal Requirements, including, without limitation, all applicable Environmental Laws~~completion; (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; (Hxi) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1A) the date 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 Major Leases, (4~~B) such time as may be required under applicable Legal Requirements in order to repair and restore the Property to the condition it was in immediately prior to such Casualty or such Taking, as applicable; and (5C) the expiration of the business interruption insurance coverage referred to in Section ~~7.1(a)(iii) above;~~7.1(c); and LOAN AGREEMENT 48 Loan No. 374-1407 (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 shall guaranty to Lender the lien-free completion by Borrower of the Restoration in accordance with the provisions of this Subsection 7.4(b); (Jxii) the Property and the use thereof after the Restoration will be in compliance with ~~and permitted under~~ all applicable Legal Requirements;. (Kd) Notwithstanding anything to the ~~Restoration shall be done~~ contrary contained herein, if the conditions to restoration set forth in Section 7.8(c) and ~~completed in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements; (L)~~ Section 7.9 are not satisfied, then Lender shall ~~be satisfied~~have the option, in its sole and absolute discretion, ~~that~~ and without regard to the adequacy of its security under the Loan Documents, of applying all or part of the Restoration of Proceeds to (i) the ~~Property will~~ Obligations, whether or not ~~be limited or restricted by the terms of the ZLDA; and (M)~~ then due, in such order as 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. determine; (ii) ~~The Net Proceeds shall be held by~~ Restoration; (iii) reimburse Lender ~~and, until disbursed in accordance with the provisions of this Section 7.4(b), shall constitute additional security~~ for ~~the Debt~~ its costs 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) expenses in connection with the ~~related~~ recovery of the Restoration ~~item have been paid for in full, and~~ Proceeds; or (Biv) ~~there exist no notices~~ any combination 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 Policyforegoing. (~~iii~~e) ~~All plans and specifications required in connection with~~ Notwithstanding anything to 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 permitscontrary contained herein, ~~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~~ event of a 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 LenderTaking, provided that (a) no Event of Default ~~exists~~has occurred, (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 other than an Event of Default ~~exists~~as to which Lender, ~~Lender shall~~in its sole discretion, ~~at its election~~has accepted a cure and (b) Lender, 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~~ Section 7.7(c), upon notice to Borrower ("Lender's Application Election Notice"), does not permit the Restoration Proceeds to be used for the ~~re-occupancy~~ Restoration and ~~use of~~ elects to apply such Restoration Proceeds to the ~~Property have been obtained from all appropriate governmental and quasi-governmental authorities~~Indebtedness, ~~and Lender receives evidence satisfactory to Lender that the costs of the Restoration have been paid in full or will~~ then no Prepayment Fee shall be ~~paid in full out of the Restoration Retainage, provided, however, that Lender will release the portion of the Restoration Retainage being held~~ due 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 application 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~~ Proceeds to the ~~contractor, subcontractor or materialman~~Indebtedness.

Appears in 1 contract

Samples: Loan Agreement (EQT Exeter Real Estate Income Trust, Inc.)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c~~If any Net Award is in excess of the Threshold Amount, Landlord (or Lender if required by any Mortgage) ~~hereof, if~~ shall hold the entire Net ~~Proceeds shall be less than~~ Award in a fund (the "Restoration Fund") and disburse amounts from the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund only in accordance with the terms of this Agreement. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.following conditions: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ prior to commencement of ~~the following conditions are met:~~ restoration, (A) the architects, contracts, contractors, plans and specifications and a budget for the restoration shall have been approved by Landlord, and (B) Landlord and Lender shall be provided with acceptable performance and payment bonds which insure satisfactory completion of and payment for the restoration, are in an amount and form and have a surety acceptable to Landlord, and name Landlord and Lender as additional dual obligees; (ii) at the time of any disbursement, no Event of Default shall exist and no mechanics' or materialmen's liens shall have ~~occurred~~ been filed against any of the Leased Premises and ~~be continuing~~remain undischarged or, if such mechanics' or materialmen's liens have been filed, appropriate waivers of mechanics' and materialmen's liens (or statutory bonds releasing such mechanics' or materialmens' liens) shall have been obtained or filed; (iii) disbursements shall be made from time to time in an amount not exceeding the cost of the Work completed since the last disbursement, upon receipt of (A) satisfactory evidence, including architects' certificates, of the stage of completion, the estimated total cost of completion and performance of the Work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (1C) contractors' and subcontractors' sworn statements as to completed Work and the cost thereof for which payment is requested, (D) a satisfactory bringdown of title insurance and (E) other evidence of cost and payment so that Landlord can verify that the amounts disbursed from time to time are represented by Work that is completed, in place and free and clear of mechanics' and materialmen's lien claims; (iv) each request for disbursement shall be accompanied by a certificate of Tenant, signed by the ~~event~~ president or a vice president of Tenant, describing the ~~Net Proceeds are insurance proceeds~~Work for which payment is requested, ~~less than thirty percent (30%) of each of (i) fair market value~~ stating the cost incurred in connection therewith, stating that Tenant has not previously received payment for such Work and, upon completion of the ~~Property as reasonably determined by Lender~~Work, ~~and (ii) rentable area of~~ also stating that the ~~Property~~ Work has been ~~damaged, destroyed or rendered unusable as a result~~ fully completed and complies with the applicable requirements of ~~a Casualty or~~ this Lease; (2v) ~~in the event the Net Proceeds are condemnation proceeds, less than~~ Landlord may retain ten percent (10%) of ~~each of (i)~~ the ~~fair market value of~~ restoration fund until the ~~Property as reasonably determined by Lender and (ii) rentable area of the Property~~ Work is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Propertyfully completed; (Cvi) ~~Leases demising~~ if the Restoration Fund is held by Landlord, the Restoration Fund shall not be commingled with Landlord's other funds and shall bear interest at a rate agreed to by Landlord and Tenant; and (vii) such other reasonable conditions as Landlord or Lender may impose. (b) Prior to commencement of restoration and at any time during restoration, if the estimated cost of completing the restoration Work free and clear of all liens, as determined by Landlord, exceeds the amount of the Net Award available for such restoration, the amount of such excess shall, upon demand by Landlord, be paid by Tenant to Landlord to be added to the Restoration Fund. Any sum so added by Tenant which remains in the ~~aggregate a percentage amount equal~~ Restoration Fund upon completion of restoration shall be refunded to ~~or greater than 75%~~ Tenant. For purposes of determining the ~~total rentable space in~~ source of funds with respect to the ~~Property which has been demised under executed and delivered Leases in effect as~~ disposition 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~~ funds remaining after the completion of restoration, the ~~Restoration, notwithstanding~~ Net Award shall be deemed to be disbursed prior to any amount added by Tenant. (c) If any sum remains in 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 Restoration Fund 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) Work and ~~shall diligently pursue the same~~ any refund to ~~satisfactory completion in compliance with all applicable Legal Requirements~~Tenant pursuant to Paragraph 19(b), ~~including, without limitation, all applicable Environmental Laws; (E) Lender~~ such sum shall be ~~satisfied that any operating deficits which will be incurred with respect to the Property as~~ retained by Landlord or, if required by a ~~result of the occurrence of any such fire~~ Note or ~~other casualty or taking will be covered out of (1) the Net Proceeds~~Mortgage, (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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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~~ Landlord to ~~settle all claims under the Policies jointly with~~ a 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 1 contract

Samples: Lease Agreement (Finisar Corp)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c~~If any Net Award is in excess of $100,000, Landlord (or Lender if required by any Mortgage) ~~hereof, if~~ shall hold the Net ~~Proceeds shall be less than~~ Award in a fund (the “Restoration Fund”) and disburse amounts from the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund only in accordance with the terms of this Agreement. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.following conditions: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ prior to commencement of ~~the following conditions are met:~~ restoration, (A) the architects, contracts, contractors, plans and specifications and a budget for the restoration shall have been approved by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed (B) Landlord and Lender shall be provided by Tenant with mechanics' lien insurance (if available) and acceptable performance and payment bonds which insure completion of and payment for the restoration, are in an amount and form and have a surety reasonably acceptable to Landlord, and name Landlord and Lender as additional dual obligees, and (C) appropriate waivers of mechanics' and materialmen's liens shall have been filed; (ii) at the time of any disbursement, no Event of Default shall exist and no mechanics' or materialmen's liens shall have ~~occurred~~ been filed against the applicable Leased Premises and ~~be continuing~~remain undischarged; (iii) disbursements shall be made from time to time in an amount not exceeding the cost of the Work completed since the last disbursement, upon receipt of (A) satisfactory evidence, including architects' certificates, of the stage of completion, the estimated total cost of completion and performance of the Work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (1C) contractors' and subcontractors' sworn statements as to completed Work and the cost thereof for which payment is requested, (D) a satisfactory bringdown of title insurance and (E) other evidence of cost and payment so that Landlord and Lender can verify that the amounts disbursed from time to time are represented by Work that is completed, in place and free and clear of mechanics' and materialmen's lien claims; (iv) each request for disbursement shall be accompanied by a certificate of Tenant, signed by the ~~event~~ president or a vice president of Tenant, describing the ~~Net Proceeds are insurance proceeds~~Work for which payment is requested, ~~less than thirty percent (30%) of each of (i) fair market value~~ stating the cost incurred in connection therewith, stating that Tenant has not previously received payment for such Work and, upon completion of the ~~Property as reasonably determined by Lender~~Work, ~~and (ii) rentable area of~~ also stating that the ~~Property~~ Work has been ~~damaged, destroyed or rendered unusable as a result~~ fully completed and complies with the applicable requirements of ~~a Casualty or~~ this Lease; (2v) ~~in the event the Net Proceeds are condemnation proceeds, less than~~ Landlord may retain ten percent (10%) of ~~each~~ the Restoration Fund until the Work is substantially completed, except for “punch-list” items permitted pursuant to the Construction Agency Agreement; (vi) If the Restoration Fund is held by Landlord, the Restoration Fund shall not be commingled with Landlord's other funds and shall bear interest at a rate agreed to by Landlord and Tenant; and (vii) such other reasonable conditions as Landlord or Lender may impose. (b) Prior to commencement of ~~(i)~~ restoration and at any time during restoration, if the ~~fair market value~~ estimated cost of completing the ~~Property~~ restoration Work free and clear of all liens, as reasonably determined by ~~Lender and (ii) rentable area~~ Landlord’s construction consultant or agent, exceeds the amount of the ~~Property is taken~~Net Award available for such restoration, the amount of such ~~land is located along the perimeter or periphery~~ excess shall, within five (5) days of ~~the Property~~demand by Landlord, ~~no portion of the Improvements is located on such land and such taking does not materially impair the existing access~~ be paid by Tenant to Landlord to be added to the ~~Property; (C) Leases demising~~ Restoration Fund. Any sum so added by Tenant which remains in the ~~aggregate a percentage amount equal~~ Restoration Fund upon completion of restoration shall be refunded to ~~or greater than 75%~~ Tenant. For purposes of determining the ~~total rentable space in~~ source of funds with respect to the ~~Property which has been demised under executed and delivered Leases in effect as~~ disposition 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~~ funds remaining after the completion of restoration, the ~~Restoration, notwithstanding~~ Net Award shall be deemed to be disbursed prior to any amount added by Tenant. (c) If any sum remains in 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 Restoration Fund 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) restoration and ~~shall diligently pursue the same~~ any refund 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) 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 Major Leases, (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 Tenant 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 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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(bParagraph 19(b), ~~shall constitute additional security for~~ such sum (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~~“Remaining Sum”) shall be ~~disbursed~~ retained by ~~Lender to~~Landlord or, if required by a Note or ~~as directed by~~Mortgage, 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~~ Landlord to ~~settle all claims under the Policies jointly with~~ a 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 1 contract

Samples: Lease Agreement (Greenville Tube CO)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c) hereof~~If any Net Award is in excess of the Major Alterations Amount, if Proceeds Trustee shall hold the Net ~~Proceeds shall be less than~~ Award in a separate interest-bearing fund in trust (the "Restoration Fund") and disburse amounts from the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund only in accordance with the terms of this Agreement. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.following conditions: (i) ~~The Net Proceeds~~ prior to commencement of restoration, the architects, contracts, contractors, plans and specifications and a budget for the restoration shall ~~be made available for Restoration provided that each of the following conditions are met:~~have been approved by Landlord; (Aii) at the time of any disbursement, no Event of Default shall exist and no mechanics' or materialmen's liens shall have ~~occurred~~ been filed against any of the Leased Premises and ~~be continuing~~remain undischarged; (iii) disbursements shall be made from time to time in an amount not exceeding the cost of the work completed since the last disbursement, upon receipt of (A) satisfactory evidence, including architects' certificates, of the stage of completion, the estimated total cost of completion and performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (1C) contractors' and subcontractors' sworn statements as to completed work and the cost thereof for which payment is requested, (D) a satisfactory bringdown of title insurance and (E) other evidence of cost and payment so that Landlord can verify that the amounts disbursed from time to time are represented by work that is completed, in place and free and clear of mechanics' and materialmen's lien claims; (iv) each request for disbursement shall be accompanied by a certificate of Tenant, signed by the ~~event~~ president or a vice president of Tenant, describing the ~~Net Proceeds are insurance proceeds~~work for which payment is requested, ~~less than thirty percent (30%) of each of (i) fair market value~~ stating the cost incurred in connection therewith, stating that Tenant has not previously received payment for such work and, upon completion of the ~~Property as reasonably determined by Lender~~work, ~~and (ii) rentable area of~~ also stating that the ~~Property~~ work has been ~~damaged, destroyed or rendered unusable as a result~~ fully completed and complies with the applicable requirements of ~~a Casualty or~~ this Lease; (2v) ~~in the event the Net~~ Landlord may require Proceeds ~~are condemnation proceeds, less than~~ Trustee to retain ten percent (10%) of ~~each~~ the restoration fund until the restoration is completed except for "punch list" items, but no retainage shall be held if ten percent (10%) is withheld until only "punch list" items remain pursuant to the applicable construction contract; and (vi) such other reasonable conditions as Landlord or Lender, if it is an Institutional Lender, may impose. (b) Prior to commencement of ~~(i)~~ restoration and at any time during restoration, if the ~~fair market value~~ estimated cost of completing the ~~Property~~ restoration work free and clear of all liens, as reasonably determined by ~~Lender and (ii) rentable area~~ Landlord's construction consultant, exceeds the amount of the ~~Property is taken~~Net Award available for such restoration, the amount of such ~~land is located along~~ excess shall, within ten (10) days following written request from Landlord, be paid in cash by Tenant to an escrow account established with an Institutional Lender ("Excess Restoration Escrow Account") or an irrevocable letter of credit shall be delivered to Proceeds Trustee for the ~~perimeter or periphery~~ amount of such excess. Any letter of credit shall be in substantially the ~~Property~~form attached hereto as Exhibit "F", ~~no portion~~ shall be issued by an Institutional Lender reasonably satisfactory to Landlord, shall be in favor of Proceeds Trustee and shall permit partial draws. Amounts in the ~~Improvements is located on such land~~ Excess Restoration Escrow Account shall be used solely to pay the cost of restoration, and ~~such taking does not materially impair~~ any sum so added by Tenant which remains in the ~~existing access~~ Excess Restoration Escrow Account upon completion of restoration shall be paid to Tenant. The Net Award shall be deemed to be disbursed prior to any amount deposited into the ~~Property;~~Excess Restoration Escrow Account by Tenant. (Cc) ~~Leases demising~~ If any sum remains 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 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 Restoration Fund after ~~the~~ completion of the ~~Restoration~~restoration and any refund to Tenant pursuant to Paragraph 19(b), ~~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 sum shall be ~~satisfied that any operating deficits which will be incurred with respect to the Property as~~ retained by Landlord or, if required by a ~~result of the occurrence of any such fire~~ Note or ~~other casualty or taking will be covered out of (1) the Net Proceeds~~Mortgage, (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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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~~ Landlord to ~~settle all claims under the Policies jointly with~~ a 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 1 contract

Samples: Lease Agreement (Rockwood Specialties Group Inc)

Restoration. ~~The~~ Subject to the rights of Mortgage Loan Lender and the Senior Mezzanine Lender, and the obligations of Mortgage Loan Borrower and Maryland Owner under the Mortgage Loan Documents and the Senior Mezzanine Loan Documents (each of which shall control in the event of any conflict until such time the Mortgage Loan may be paid or satisfied), the following provisions shall apply in connection with the Restoration of the Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the applicable Restoration Threshold and the costs of completing the Restoration shall be less than the applicable Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower, Mezzanine 1 Borrower, Mezzanine 2 Borrower and Property Owners, as the case may be, upon receipt, provided that all of the conditions set forth in Section ~~7.4(b)(i~~8.4(b)(i) below, those conditions set forth in Section 8.4(b)(1) of the applicable Mezzanine 2 Loan Agreement, Section 8.4(b)(1) of the applicable Mezzanine 2 Loan Agreement, those conditions set forth in Section 8.4(b)(1) of the applicable Mezzanine 1 Loan Agreement and (in the case of Xxxxx Fargo Mortgage Loan Property) those conditions set forth in Section 8.4(b)(i) of the Xxxxx Fargo Mortgage Loan Agreement are each met and Borrower delivers to Lender a written undertaking by Property Owners to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement, the Senior Mezzanine Loan Agreements and (in the case of Xxxxx Fargo Mortgage Loan Property) the Xxxxx Fargo Mortgage Loan Agreement. (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the applicable Restoration Threshold or the costs of completing the Restoration are equal to or greater than the applicable Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section ~~7.4.~~ 8.4. The term “Net Proceeds” for purposes of this Section 8.4 means: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ the net amount of ~~the following conditions are met:~~ all insurance proceeds received by Lender pursuant to Section 8.1(a)(i), (Aiv), (vi), (vii) 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 each of (i) fair market value of the Property as reasonably determined by Lender, and (iiviii) ~~rentable area of the Property has been damaged, destroyed or rendered unusable~~ as a result of a ~~Casualty~~ Casualty, after deduction of its reasonable costs and expenses (including, reasonable counsel fees), if any, in collecting the same (“Insurance Proceeds”), or ~~(2) in the event the Net Proceeds are condemnation proceeds, less than ten percent (10%) of each of (i) the fair market value of the Property as reasonably determined by Lender and~~ (ii) ~~rentable area~~ the net amount of the ~~Property is taken~~Award as a result of a Condemnation, ~~such land is located along~~ after deduction of its reasonable costs and expenses (including reasonable counsel fees), if any, in collecting the ~~perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property;~~ same (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 delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking“Condemnation Proceeds”), 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 1 contract

Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)

Restoration. ~~The following provisions~~ (1) Except as otherwise set forth in this Agreement (including this Section 12.2(1)), Capio shall ~~apply in connection with~~ be obligated to plug and abandon all xxxxx owned, utilized, placed or caused to be placed by Capio on the ~~Restoration~~ Property no longer necessary for the Permitted Purposes; to remove from the Property all Improvements and Equipment owned, utilized, placed or caused to be placed by Capio which are no longer utilized for the Permitted Purposes; and to the extent caused by Capio’s activities on the Property, restore the surface of the Property: , as near as practicable, to the condition existing on the Effective Date of this Agreement (“Restoration Obligations”), all at Capio’s sole risk, cost and expense and subject to compliance with Applicable Law(s) and Applicable Procedure(s). Unless doing so would be in violation of Applicable Law(s), Capio shall complete the Restoration Obligations within a reasonable time (but no later than eighteen (18) months, subject to extension for Force Majeure or any Suspending Events) following: (a) ~~Subject~~ the date said xxxxx, structures or facilities are no longer necessary for Permitted Purposes; or (b) the date this Agreement has expired, terminated or been released (whichever occurs first) as to ~~Section 7.4(c~~all or a portion of the Property. Notwithstanding anything contained in this Agreement to the contrary, to the extent permitted by Applicable Law(s) ~~hereof~~and Applicable Procedure(s), ~~if the Net Proceeds~~ consideration of abandonment in place for such Improvements and Equipment shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete determined after consultation with ~~due diligence the Restoration~~ DWF in accordance with the ~~terms~~ applicable provisions of ~~this Agreement~~Schedule 1 and to the extent adverse impacts to fish and wildlife can be avoided in the short and long-term. The failure of Capio to timely complete the Restoration Obligations shall subject Capio to and make Capio liable for any and all costs or expenses of any kind incurred by the State for plugging said xxxxx or removing said structures or facilities, but in no instance shall title to or ownership of said facilities automatically vest in or transfer to the State nor shall said xxxxx, structures or facilities be deemed “improvements” to the Property for purposes of vesting title in same to the State. Notwithstanding anything in the foregoing to the contrary, Xxxxx retains the right to perform its Restoration Obligations and such related obligations in accordance with any other Sequestration Protocols. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i2) The ~~Net Proceeds shall be made available~~ State recognizes Capio’s right to draw and remove casing from xxxxx and, further, to remove any structures and facilities no longer utilized 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 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of Permitted Purposes on the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 1 contract

Samples: Operating Agreement

Restoration. The following provisions shall apply in connection with the Restoration of ~~the Property~~any Property affected by a Casualty: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~shall~~ reasonably expected to be received in connection with any single Casualty event is less than the ~~Restoration~~ Casualty Threshold Amount, then, (i) if no Event of Default shall have occurred and ~~the costs of completing the Restoration shall~~ be ~~less than the Restoration Threshold~~continuing and, ~~the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all~~ within sixty (60) days of the ~~conditions set forth in Section 7.4(b)(i) are met and~~ date of the occurrence of such Casualty, Borrower delivers to Lender a written undertaking to (x) expeditiously commence and to satisfactorily complete with due diligence the Restoration of the affected Properties in accordance with the terms of this Agreement, then (A) if Net Proceeds are paid by the insurance company directly to Borrower subsequent to delivering such undertaking, such Net Proceeds may be retained by Borrower (for the avoidance of doubt, Net Proceeds received by Borrower prior to delivering such undertaking shall be immediately paid to Lender as required by Section 5.2), (B) if Net Proceeds are paid by the insurance company to Lender, such Net Proceeds will be disbursed by Lender to Borrower and (C) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of Section 5.4(c) or (y) substitute the Property subject to the Casualty event with a Substitute Property in accordance with the requirements of Section 2.4.2(a) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall be applied to the prepayment of the Debt in an amount equal to the Release Amount for such Property in accordance with Section 2.4.2(c), (D) Borrower shall prepay the Loan in an amount equal to the excess, if any, of the Release Amount for such Property over such Net Proceeds and (E) promptly following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, if any, Lender shall (x) release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (A) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (B) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (y) disburse to Borrower (A) in the case of a substitution of a Substitute Property for such Property, the Net Proceeds paid by the insurance company and (B) in the case of the payment of the Release Amount for such Property, the Net Proceeds paid by the insurance company in excess of the Release Amount for such Property, if any; provided that, during the continuance of a Cash Sweep Period, any such excess Net Proceeds shall instead be delivered to the Cash Collateral Subaccount and disbursed in accordance with Section 6.6.1 and Section 6.6.2. (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~are equal~~ reasonably expected to or be received in connection with any single Casualty event is greater than the ~~Restoration~~ Casualty Threshold ~~or the costs of completing the Restoration are equal to or greater than the Restoration Threshold~~Amount, ~~Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.~~ then, (i) ~~The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A)~~ if no Event of Default shall have occurred and be ~~continuing;~~ continuing and, within sixty (B60) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as days of the date of the occurrence of such ~~fire or other casualty or taking~~Casualty, ~~whichever~~ Borrower delivers to Lender a written undertaking to (x) expeditiously commence and to satisfactorily complete with due diligence the ~~case may be, shall remain in full force and effect during and after the completion~~ Restoration of the ~~Restoration~~affected Properties in accordance with the terms of this Agreement, ~~notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and~~ then (A) Borrower ~~furnishes~~ shall immediately deliver to Lender ~~evidence satisfactory~~ any Net Proceeds paid to Borrower as required by Section 5.2 and (B) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of and subject to the conditions of Section 5.4(d) or (y) substitute the Property subject to the Casualty event with a Substitute Property in accordance with the requirements of Section 2.4.2(a) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender ~~that all Tenants under Major Leases~~ any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall ~~continue~~ be applied to ~~operate their respective space at~~ the ~~Property after the completion~~ prepayment of the ~~Restoration;~~ Debt in an amount equal to the Release Amount for such Property in accordance with Section 2.4.2(c), (D) Borrower shall ~~commence (or shall cause~~ prepay the ~~commencement of) the Restoration as soon as reasonably practicable (but~~ Loan 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 companyexcess, if any, ~~which~~ of the Release Amount for the affected Properties over such Net Proceeds and (E) promptly following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, if any, Lender shall (x) release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (A) Borrower has ~~issued a payment or performance bond with respect~~ delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the ~~contractor~~affected Properties, ~~subcontractor or materialman.~~such release shall be a partial

Appears in 1 contract

Samples: Loan Agreement (Altisource Residential Corp)

Restoration. ~~The following provisions shall apply in connection with the Restoration~~ (B) of the ~~Property:~~ ACC is modified in its entirety to read as follows: The Authority shall comply with, and ensure compliance with, the following requirements with respect to the restoration of the Project Units in the event of fire or other casualty, or in the event of condemnation: To the extent that insurance proceeds or condemnation award proceeds (a"Proceeds") ~~Subject~~ permit, the Authority shall promptly cause the restoration, reconstruction, and/or repair ("Restoration") of any damaged or destroyed property of the Development. The obligation for Restoration, to ~~Section 7.4(c~~the extent that Proceeds and other funds (if any are made available by an Owner Entity or the Authority) ~~hereof~~permit, is a requirement with which the Owner Entity must comply to the extent Restoration is feasible. Each mortgagee must permit Restoration if feasible (rather than require application of Proceeds to reduction of debt). If Restoration is not feasible, then the following provision, which shall also be incorporated into the Regulatory and Operating Agreement between the Authority and the Owner Entity (and Ground Lease, if applicable), and with which all mortgage documents encumbering the ~~Net Proceeds~~ Development shall be ~~less than~~ consistent, shall apply: The total number of units in the ~~Restoration Threshold and the costs of completing the Restoration~~ Development shall be ~~less than~~ divided by the ~~Restoration Threshold,~~ original number of Project Units required under this Mixed Finance ACC Amendment to determine the ~~Net Proceeds will~~ percentage of Project Units required to be ~~disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met~~ operated and ~~Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration~~ maintained as public housing in accordance with the ~~terms~~ Applicable Public Housing Requirements. This percentage shall thereafter be applied to the remaining number of ~~this Agreement.~~ units in the Development to determine the number of Project Units that continue to be subject to the Applicable Public Housing Requirements. (~~b) Subject to Section 7.4(c) hereof~~For example, if the ~~Net Proceeds are equal~~ total number of units in the Development is 336 units, and the original number of Project Units under this Mixed Finance ACC Amendment is 84 units, then the percentage of Project Units in the Development is equivalent to 25%, i.e., 336 divided by 84 = 25%. If, following a casualty or ~~greater than~~ condemnation, it is determined that it would not be feasible to rebuild or repair 160 of the ~~Restoration Threshold or~~ 336 units in the ~~costs~~ Development, this would result in 176 total units remaining in the Development. The application of ~~completing~~ the ~~Restoration are equal~~ 25% figure to ~~or greater than~~ the ~~Restoration Threshold, Lender shall make~~ remaining 176 units in the ~~Net Proceeds available for~~ Development results in a total of 44 units in the ~~Restoration~~ Development that must be operated and maintained as public housing units in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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 Applicable Public Housing Requirements, ~~including~~i.e., 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) 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 Major Leases, (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 shall guaranty to Lender the lien-free completion by Borrower of the Restoration in accordance with the provisions of this Subsection 7.4(b25% x 176 = 44 Project Units.); (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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 1 contract

Samples: Mixed Finance Amendment to Consolidated Annual Contributions Contract

Restoration. ~~The~~ Subject to the rights of Mortgage Loan Lender and the Other Senior Mezzanine Lender, and the obligations of Mortgage Loan Borrower and Maryland Owner under the Mortgage Loan Documents and the Other Senior Mezzanine Loan Documents (each of which shall control in the event of any conflict until such time the Mortgage Loan may be paid or satisfied), the following provisions shall apply in connection with the Restoration of the Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the applicable Restoration Threshold and the costs of completing the Restoration shall be less than the applicable Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower, Mezzanine 1 Borrower, Mezzanine 2 Borrower and Property Owners, as the case may be, upon receipt, provided that all of the conditions set forth in Section ~~7.4(b)(i~~8.4(b)(i) below, those conditions set forth in Section 8.4(b)(1) of the applicable Mezzanine 2 Loan Agreement, those conditions set forth in Section 8.4(b)(1) of the applicable Mezzanine 1 Loan Agreement and (in the case of Xxxxx Fargo Mortgage Loan Property) those conditions set forth in Section 8.4(b)(i) of the Xxxxx Fargo Mortgage Loan Agreement are each met and Borrower delivers to Lender a written undertaking by Property Owners to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement, the Other Senior Mezzanine Loan Agreements and (in the case of Xxxxx Fargo Mortgage Loan Property) the Xxxxx Fargo Mortgage Loan Agreement. (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the applicable Restoration Threshold or the costs of completing the Restoration are equal to or greater than the applicable Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section ~~7.4.~~ 8.4. The term “Net Proceeds” for purposes of this Section 8.4 means: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ the net amount of ~~the following conditions are met:~~ all insurance proceeds received by Lender pursuant to Section 8.1(a)(i), (Aiv), (vi), (vii) 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 each of (i) fair market value of the Property as reasonably determined by Lender, and (iiviii) ~~rentable area of the Property has been damaged, destroyed or rendered unusable~~ as a result of a ~~Casualty~~ Casualty, after deduction of its reasonable costs and expenses (including, reasonable counsel fees), if any, in collecting the same (“Insurance Proceeds”), or ~~(2) in the event the Net Proceeds are condemnation proceeds, less than ten percent (10%) of each of (i) the fair market value of the Property as reasonably determined by Lender and~~ (ii) ~~rentable area~~ the net amount of the ~~Property is taken~~Award as a result of a Condemnation, ~~such land is located along~~ after deduction of its reasonable costs and expenses (including reasonable counsel fees), if any, in collecting the ~~perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property;~~ same (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 delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking“Condemnation Proceeds”), 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 1 contract

Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c~~Landlord (or Lender if required by any Mortgage), in either case acting as trustee for the benefit of Landlord, Lender and Tenant, as their interests may appear, shall hold Net Award in excess of $250,000 in a fund (the "RESTORATION FUND") ~~hereof, if the Net Proceeds shall be less than~~ and disburse amounts from the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund only in accordance with the terms of this Agreement. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.following conditions: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ prior to commencement of ~~the following conditions are met:~~ restoration, (A) the architects, contracts, contractors, plans and specifications for the restoration shall have been reasonably approved by Landlord and (B) Landlord and Lender shall be provided with reasonably acceptable performance and payment bonds which insure satisfactory completion of and payment for the restoration, are in an amount and form and have a surety reasonably acceptable to Landlord, and name Landlord and Lender as additional dual obligees; (ii) at the time of any disbursement, no Event of Default shall exist and no mechanics' or materialmen's liens shall have ~~occurred~~ been filed against any of the Leased Premises and ~~be continuing~~remain undischarged, unbonded or, if filed, the title company shall affirmatively insure over such lien or liens; (iii) disbursements shall be made from time to time in an amount not exceeding the cost of the work completed since the last disbursement, upon receipt of (A) satisfactory evidence, including architects' certificates, of the stage of completion, the estimated total cost of completion and performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (1C) contractors' and subcontractors' sworn statements as to completed work and the cost thereof for which payment is requested, (D) a satisfactory bringdown of title insurance and (E) other evidence of cost and payment so that Landlord can verify that the amounts disbursed from time to time are represented by work that is completed, in place and free and clear of mechanics' and materialmen's lien claims; (iv) each request for disbursement shall be accompanied by a certificate of Tenant, signed by the ~~event~~ president or a vice president of Tenant, describing the ~~Net Proceeds are insurance proceeds~~work for which payment is requested, ~~less than thirty percent (30%) of each of (i) fair market value~~ stating the cost incurred in connection therewith, stating that Tenant has not previously received payment for such work and, upon completion of the ~~Property as reasonably determined by Lender~~work, ~~and (ii) rentable area of~~ also stating that the ~~Property~~ work has been ~~damaged, destroyed or rendered unusable as a result~~ fully completed and complies with the applicable requirements of ~~a Casualty or~~ this Lease; (2v) ~~in the event the Net Proceeds are condemnation proceeds, less than~~ Landlord may retain ten percent (10%) of ~~each of~~ the restoration fund until fifty percent (i50%) ~~the fair market value~~ of the ~~Property as reasonably determined by Lender and (ii) rentable area of the Property~~ restoration is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Propertyfully completed; (Cvi) ~~Leases demising~~ if the Restoration Fund is held by Landlord, the Restoration Fund shall not be commingled with Landlord's other funds and shall bear interest at a rate agreed to by Landlord and Tenant; and (vii) such other reasonable conditions as Landlord or Lender may impose. (b) Prior to commencement of restoration and at any time during restoration, if the estimated cost of completing the restoration work free and clear of all liens, as determined by Landlord, exceeds the amount of the Net Award available for such restoration, the amount of such excess shall, upon demand by Landlord, be paid by Tenant to Landlord to be added to the Restoration Fund. Any sum so added by Tenant which remains in the ~~aggregate a percentage amount equal~~ Restoration Fund upon completion of restoration shall be refunded to ~~or greater than 75%~~ Tenant. For purposes of determining the ~~total rentable space in~~ source of funds with respect to the ~~Property which has been demised under executed and delivered Leases in effect as~~ disposition 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~~ funds remaining after the completion of restoration, the ~~Restoration, notwithstanding~~ Net Award shall be deemed to be disbursed prior to any amount added by Tenant. (c) If any sum remains in 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 Restoration Fund 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) restoration and ~~shall diligently pursue the same~~ any refund to ~~satisfactory completion in compliance with all applicable Legal Requirements~~Tenant pursuant to Paragraph 19(b), ~~including, without limitation, all applicable Environmental Laws; (E) Lender~~ such sum shall be ~~satisfied that any operating deficits which will be incurred with respect to the Property as~~ retained by Landlord or, if required by a ~~result of the occurrence of any such fire~~ Note or ~~other casualty or taking will be covered out of (1) the Net Proceeds~~Mortgage, (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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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~~ Landlord to ~~settle all claims under the Policies jointly with~~ a 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 1 contract

Samples: Lease Agreement (Sentry Technology Corp)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c) hereof, if~~ In the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided event that ~~all~~ each of the following conditions set forth in Section 7.4(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) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Thresholdis satisfied, Lender shall make the net amount of all insurance proceeds actually received by Lender pursuant to this Security Instrument as a result of any fire or other casualty, after deduction of its reasonable costs and expenses (including, without limitation, architects', attorneys', engineers' and other consultants' and professionals' fees and disbursements), if any, in connection therewith (the "Net ~~Proceeds~~ Proceeds"), available to Borrower for the Restoration in accordance with the provisions of this ~~Section 7.4.~~Subsection 4.4(a): (i~~) The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A~~) no Event of Default shall have occurred and be ~~continuing~~continuing under the Note, this Security Instrument or any of the other Loan Documents; (Bii) ~~(1) in the event~~ the Net Proceeds ~~are insurance proceeds, less than thirty percent (30%) of each of (i) fair market value~~ in connection with such casualty shall not exceed the outstanding amount of the ~~Property~~ Debt; (iii) if the Net Proceeds shall exceed Fifty Thousand Dollars ($50,000), a licensed engineer or architect acceptable to Lender shall have delivered to Lender a certificate estimating the cost of fully completing the Restoration and a schedule of the time required therefor, which schedule shall indicate that the Restoration can be completed prior to the Maturity Date (as ~~reasonably determined by Lender~~defined in the Note), and (ii) ~~rentable area of~~ the ~~Property has been damaged, destroyed or rendered unusable as a result of a Casualty or~~ date occurring twelve (212) in the event the Net Proceeds are condemnation proceeds, less than ten percent (10%) of each of (i) the fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as of months after 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 Restorationcasualty; (Div) Borrower shall commence ~~(or shall cause the commencement of)~~ the Restoration as soon as reasonably practicable (but in no event later than ~~thirty~~ forty-five (3045) days after ~~the issuance~~ reciept of a building permit ~~with respect thereto~~for the Restoration) such damage or destruction occurs) and shall diligently pursue the same to satisfactory completion in ~~compliance with all applicable Legal Requirements, including, without limitation, all applicable Environmental Laws~~a good and workmanlike manner; (Ev) 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~~ casualty, including a reasonable period thereafter for leasing the Property, will be covered out of (1A) the Net Proceeds, (2B) the rental or business income insurance coverage referred to in Section ~~7.1(a)(iii) above~~3.3, or (3C) by other funds of Borrower; (Fvi) 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~~ in its sole discretion that, upon the completion of the Restoration, the ~~fair market value~~ gross cash flow and the net cash flow of the ~~Property~~ Property, taking into consideration any Leases which may be terminated as a result of such casualty, will ~~not~~ be ~~less than the fair market value~~ restored to a level sufficient to cover all carrying costs and ~~cash flow~~ operating expenses of the ~~Property as~~ Property, including, without limitation, debt service on the ~~same existed immediately prior~~ Note at a coverage ratio (after deducting replacement reserve requirements and reserves for tenant improvements and leasing commissions, if applicable from net operating income) of at least 1.30 to ~~the applicable Casualty or Condemnation; (H) Lender~~ 1.0, which coverage ratio shall be ~~satisfied that~~ determined by Lender in its sole and absolute discretion on 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 Major Leases, (4) such time as may be required under applicable Legal Requirements or (5) the expiration basis of the ~~insurance coverage referred to~~ Applicable Interest Rate (as defined 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 shall guaranty to Lender the lien-free completion by Borrower of the Restoration in accordance with the provisions of this Subsection 7.4(b~~Note); (Jvii) the Restoration shall be performed and completed by Borrower in an expeditious and diligent fashion in a good and workmanlike manner in accordance with plans and specifications therefor approved by Lender (as provided in subsection (b) below) and in compliance with all Applicable Laws; (viii) Borrower shall deliver to Lender evidence satisfactory to Lender (which may include certificates of governmental authorities, endorsements to Lender's title insurance policy and/or legal opinions) that, following the completion of the Restoration, 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDAApplicable Laws; and (Mix) Lender shall ~~be satisfied~~ have received from Borrower a certificate certifying that ~~making the Net Proceeds available for Restoration shall be permitted pursuant to REMIC Requirements and,~~ all applicable conditions contained in ~~that regard, Lender may require Borrower to deliver a REMIC Opinion in connection therewith~~this Subsection 4.4(a) have been satisfied. (iib) The Net Proceeds shall be held by Lender and, until disbursed in accordance with the provisions of this Section ~~7.4(b)~~4.4, shall constitute additional security for the ~~Debt~~ Obligations. Provided all of the conditions set forth in Subsection 4.4(a) have been and ~~other obligations under this Agreement~~remain satisfied, then the ~~Security Instrument, the Note and the other Loan Documents.~~ following shall apply: (i) 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 's or materialman’s '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~~ insuring the ~~Title Insurance Policy~~lien of this Security Instrument. (~~iii~~ii) All plans and specifications ~~required~~ in connection with the Restoration shall be subject to prior review and ~~acceptance~~ 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 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 's fees, shall be paid by Borrower. (iii) Until such time as the Restoration has been completed and Lender shall have received copies of any and all final certificates of occupancy or other certificates, licenses and permits required for the ownership, occupancy and operation of the Property in accordance with all Applicable Laws, Lender shall be entitled to retain, and not disburse, up to ten percent (10%) of the cost of the Restoration, as determined by the Casualty Consultant (the "Casualty Retainage"). Borrower ~~shall have~~ hereby covenants diligently to seek to obtain any such certificates, licenses and permits. Promptly after the ~~right to settle all claims under~~ completion of the ~~Policies jointly~~ Restoration and delivery of such certificates, licenses and permits in accordance with ~~Lender~~the provisions hereof, provided ~~that (a)~~ no Event of Default ~~exists~~shall then be continuing, ~~(b) Borrower promptly and with commercially reasonable diligence negotiates a settlement of~~ Lender shall disburse the Casualty Retainage to or as directed by Borrower, subject, however, to Lender's right to apply any ~~such claims and (c)~~ excess proceeds remaining after the ~~insurer with respect to the Policy under which such claim is brought has not raised any act~~ completion of the ~~insured as a defense~~ Restoration 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~~Debt. (iv) ~~In no event~~ If at any time the Net Proceeds or the undisbursed balance thereof shall ~~Lender~~ not, in the opinion of Lender, be ~~obligated~~ sufficient to ~~make disbursements~~ 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 with Lender, which shall thereafter be treated as Net Proceeds, before any further disbursement 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~~ shall be made. (v) The excess, if any, 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 remaining after 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~~Section 4.4, and the receipt by Lender ~~receives~~ of evidence satisfactory to Lender that ~~the~~ all costs of incurred in connection with the Restoration have been paid in ~~full or will~~ full, shall be ~~paid in full out~~ 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. (c) Notwithstanding any provision of this Security Instrument to the contrary, all Net Proceeds not required to be made available for the Restoration ~~Retainage, provided, however, that~~ may be retained and applied by Lender ~~will release~~ toward the ~~portion~~ payment of the ~~Restoration Retainage being held with respect to any contractor~~Debt whether or not then due and payable in such order, ~~subcontractor or materialman engaged~~ priority and proportions as Lender in its discretion shall deem proper or, at the ~~Restoration as~~ discretion of Lender, 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 same may be ~~reasonably requested by~~ paid, either in whole or in part, to Borrower for such purposes as Lender ~~or by the title company insuring~~ shall designate, in its sole discretion. If Lender shall receive and retain Net Proceeds, the lien of this Security Instrument shall be reduced only by the ~~Security Instrument. If required~~ amount thereof received and retained by ~~Lender, the release of any such portion~~ Lender and actually applied by Lender in reduction 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~~Debt.

Appears in 1 contract

Samples: Mortgage, Security Agreement and Fixture Filing (Excal Enterprises Inc)

Restoration. ~~The following provisions shall apply in connection with~~ If the ~~Restoration~~ Premises, the Building or the Parking Deck, as the case may be, is damaged by fire or other casualty to the extent of less than twenty percent (20%) of the ~~Property:~~ value thereof in the reasonable opinion of Landlord, then Landlord shall, except as otherwise provided herein, proceed with diligence to rebuild and restore the Parking Deck, the Building and/or the Premises (~~a) Subject~~ exclusive of Tenant’s property and improvements or alterations that are the property of Tenant), as the case may be, substantially to ~~Section 7.4(c) hereof~~the condition thereof existing immediately prior to such damage or destruction. Excluded from Landlord’s obligation to rebuild or restore shall be Tenant’s personal property, equipment, furniture, trade fixtures, unapproved alterations or other improvements that were not part of the Premises upon the Commencement Date or alterations approved by Landlord after the Commencement Date. Notwithstanding the foregoing, if ~~the Net Proceeds shall be less than the Restoration Threshold and the costs~~ by reason of ~~completing the Restoration shall be less than the Restoration Threshold~~such casualty, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) ~~The Net Proceeds shall be made available for Restoration provided that each of~~ the ~~following conditions~~ Parking Deck, the Building and/or the Premises are ~~met: (A) no Event of Default shall have occurred and be continuing; (B) (1)~~ damaged 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 whole or ~~rendered unusable~~ in part as a result of a ~~Casualty~~ risk which is not covered by insurance policies in force and carried by Landlord; or ~~(2) in the event the Net Proceeds are condemnation proceeds, less than ten percent (10%) of each of (i) the fair market value of the Property as reasonably determined by Lender and~~ (ii) ~~rentable area~~ Landlord’s lender(s) shall not permit a sufficient amount of the ~~Property is taken~~insurance proceeds to be used for restoration purposes; or (iii) the Parking Deck, ~~such land is located along~~ the ~~perimeter or periphery~~ Office Lease Page 23 Building and/or the Premises are damaged during the final twelve (12) calendar months of the ~~Property~~Term (including any properly exercised extensions and renewals, ~~no portion of the Improvements is located on such land and such taking~~ if any); or (iv) Landlord does not ~~materially impair the existing access to the Property;~~ reasonably believe that such restoration or repair can be completed within one hundred eighty (C180) ~~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 delivered Leases in effect as~~ days of the date ~~of the occurrence~~ of such fire or other ~~casualty or taking~~casualty, ~~whichever the case~~ then in any event, Landlord may ~~be, shall remain in full force and effect during and after the completion~~ terminate this Lease by written notice of ~~the Restoration, notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and Borrower furnishes~~ termination given 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 Tenant within thirty (30) days after the ~~issuance~~ date of such fire or other casualty, and, unless the reason to terminate was that the casualty occurred during the final twelve (12) calendar months of the Term and within fourteen (14) days of the date of Landlord’s notice Tenant elects to exercise an Extension Option (if Tenant is otherwise entitled to exercise it), then this Lease shall terminate. If such termination notice is not given by Landlord within said thirty (30) day period, or if the termination notice is given and reversed by Tenant’s exercise of an Extension Option as provided in the preceding sentence, then Landlord shall repair and restore the Parking Deck, the Building and/or the Premises as provided above. At any time after a casualty event, if Landlord is obligated to, or has elected to, complete restoration for purposes of this Article 15, but Landlord determines that there may be insufficient insurance proceeds to complete such restoration, for whatever reason (whether due to the cause of the damage or destruction being an uninsured risk, to Landlord’s lender not permitting a sufficient amount of the insurance proceeds to be used for restoration purposes, to the insufficiency of proceeds after paying the costs of claiming and collecting the proceeds or for other reasons), Landlord shall notify Tenant immediately of such insufficiency of insurance proceeds, and whether the insufficiency will cause any portion of the Premises to not be restored (excluding Tenant’s property and improvements or alterations that are the property of Tenant) (a “Notice of Insufficiency”). If Tenant receives a Notice of Insufficiency, which projects that some portion of the Premises will not be substantially restored, and such failure to substantially restore would not permit Tenant to carry on its business to substantially the same extent and with substantially the same effectiveness as before such damage or destruction, then Tenant shall have a period of fifteen (15) business days after receipt of a ~~building permit with respect thereto~~Notice of Insufficiency to terminate this Lease by written notice to Landlord. If Tenant receives a Notice of Insufficiency, which projects that the insufficient proceeds will not impair a full restoration of the Premises (excluding Tenant’s property and improvements or alterations that are the property of Tenant), then Tenant shall not have a right to terminate this Lease, and Landlord shall carry out and complete its restoration of the damage and destruction, and its obligation to restore the Premises shall not be subject to any insufficiency of insurance proceeds. In addition, Tenant may also terminate this Lease, by written notice to Landlord at any time between the 181st and 195th day (exclusive of Force Majeure Delay and Tenant Delay) 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 after the occurrence of any such fire or other casualty ~~or taking will be covered out of (1)~~ if Landlord shall fail to complete 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 rebuilding and restoration of the ~~Restoration; (G) Lender shall be satisfied that, upon the completion of the Restoration~~Parking Deck, the ~~fair market value and cash flow~~ Building and/or the Premises such that a certificate of ~~the Property will~~ occupancy (temporary or final) shall 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 have been issued within 180 days of such fire or other ~~casualty or taking~~casualty, ~~(3) the earliest date required for such completion under the terms~~ exclusive of any Major Leases, (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 Force Majeure Delay 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 Tenant Delay. Termination 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~~ Lease by Tenant shall be ~~done and completed in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements; (L) Lender shall be satisfied~~Tenant’s sole remedy for Landlord’s failure to rebuild or restore the Premises, ~~in its sole and absolute discretion, that~~ the ~~Restoration of~~ Building and/or the Property will not be limited or restricted by the terms of the ZLDA; 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 Parking Deck under this Section 15.02. Upon any termination of this Lease under this Section ~~7.4(b)~~15.02, ~~shall constitute additional security~~ Tenant’s liability for ~~the Debt~~ Rent 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)~~ charges reserved hereunder 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 cease as of the effective 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~~ termination 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 materialmanthis Lease.

Appears in 1 contract

Samples: Office Lease (Ncino, Inc.)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the Property~~any Property affected by a Casualty: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~shall~~ reasonably expected to be received in connection with any single Casualty event is less than the ~~Restoration~~ Casualty Threshold Amount, then, (i) if no Event of Default shall have occurred and ~~the costs of completing the Restoration shall~~ be ~~less than the Restoration Threshold~~continuing and, ~~the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all~~ within sixty (60) days of the ~~conditions set forth in Section 7.4(b)(i) are met and~~ date of the occurrence of such Casualty, Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration of the affected Properties in accordance with the terms of this Agreement, then (A) if Net Proceeds are paid by the insurance company directly to Borrower subsequent to delivering such undertaking, such Net Proceeds may be retained by Borrower (for the avoidance of doubt, Net Proceeds received by Borrower prior to delivering such undertaking shall be immediately paid to Lender as required by Section 5.2), (B) if Net Proceeds are paid by the insurance company to Lender, such Net Proceeds will be disbursed by Lender to Borrower and (C) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of Section 5.4(c) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall be applied to the prepayment of the Debt in an amount equal to the Release Amount for such Property in accordance with Section 2.4.2(c), (D) Borrower shall prepay the Loan in an amount equal to the excess, if any, of the Release Amount for such Property over such Net Proceeds, and (E) promptly following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, if any, Lender shall (x) release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (A) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (B) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (y) disburse to Borrower (A) in the case of a substitution of a Substitute Property for such Property, the Net Proceeds paid by the insurance company and (B) in the case of the payment of the Release Amount for such Property, the Net Proceeds paid by the insurance company in excess of the Release Amount for such Property; provided that, during the continuance of a Cash Sweep Period, the applicable Net Proceeds shall instead be delivered to the Cash Collateral Subaccount and disbursed in accordance with Section 6.6.3. (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~are equal~~ reasonably expected to or be received in connection with any single Casualty event is greater than the ~~Restoration~~ Casualty Threshold ~~or the costs of completing the Restoration are equal to or greater than the Restoration Threshold~~Amount, ~~Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.~~ then, (i) ~~The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A)~~ if no Event of Default shall have occurred and be ~~continuing;~~ continuing and, within sixty (B60) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as days of the date of the occurrence of such ~~fire or other casualty or taking~~Casualty, ~~whichever~~ Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the ~~case may be, shall remain in full force and effect during and after the completion~~ Restoration of the ~~Restoration~~affected Properties in accordance with the terms of this Agreement, ~~notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and~~ then (A) Borrower ~~furnishes~~ shall immediately deliver to Lender ~~evidence satisfactory~~ any Net Proceeds paid to Borrower as required by Section 5.2 and (B) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of and subject to the conditions of Section 5.4(d) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender ~~that all Tenants under Major Leases~~ any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall ~~continue~~ be applied to ~~operate their respective space at~~ the ~~Property after the completion~~ prepayment of the ~~Restoration;~~ Debt in an amount equal to the Release Amount for such Property in accordance with Section 2.4.2(c), (D) Borrower shall prepay the Loan in an amount equal to the excess, if any, of the Release Amount for the affected Properties over such Net Proceeds, and (E) promptly following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, if any, Lender shall (x) release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (A) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (B) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (y) disburse to Borrower (A) in the case of a substitution of a Substitute Property for such Property, the Net Proceeds paid by the insurance company and (B) in the case of the payment of the Release Amount for such Property, the Net Proceeds paid by the insurance company in excess of the Release Amount for such Property; provided that, during the continuance of a Cash Sweep Period, the applicable Net Proceeds shall instead be delivered to the Cash Collateral Subaccount and disbursed in accordance with Section 6.6.3. (c) If Borrower elects to undertake the Restoration a Property or Properties pursuant to Section 5.4(a), (i) Borrower shall commence ~~(or shall cause the commencement of)~~ the Restoration as soon as reasonably practicable (but in no event later than ~~thirty~~ ninety (3090) days after ~~the issuance of a building permit with respect thereto~~such Casualty occurs) and shall diligently pursue the same to satisfactory ~~completion~~ completion; (ii) Borrower shall cause the affected Property and the use thereof after the Restoration to be in compliance with and permitted under all applicable Legal Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (iii) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal ~~Requirements~~Requirements and the Renovation Standards and (iv) for any Restoration of a Property with a total expected cost exceeding $20,000, ~~including~~Borrower shall deliver, ~~without limitation~~or cause to be delivered, ~~all applicable Environmental Laws;~~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. (Ed) If Borrower elects to undertake the Restoration of a Property or Properties pursuant to Section 5.4(b), the following provisions shall apply: (i) the Net Proceeds shall be made available to Borrower for Restoration upon the determination of Lender that the following conditions are met: (A) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than ninety (90) days after such Casualty occurs) and shall diligently pursue the same to satisfactory completion; (B) Lender shall be satisfied that any operating ~~deficits~~ deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the ~~Property~~ Properties as a result of the occurrence of ~~any such fire or other casualty or taking~~ the Casualty, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section ~~7.1(a)(iii) above~~5.1.1(a)(ii), if applicable, 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; (HC) 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 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 ~~Major Leases~~Lease, (43) such time as may be required under applicable Legal Requirements or (54) six (6) months prior to the expiration of the insurance coverage referred to in Section ~~7.1(a)(iii) above;~~5.1.1 (Ia) (ii); (D) Borrower shall ~~execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender and its counsel pursuant to~~ cause 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 7.4(b); (J) the~~ affected Property and the use thereof after the Restoration ~~will~~ to be in compliance with and permitted under all applicable Legal ~~Requirements;~~ Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (KE) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal ~~Requirements;~~ Requirements and the Renovation Standards; (LF) for any Restoration of a Property with a total expected cost exceeding $20,000, 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 ~~satisfied, in its sole~~ reasonably acceptable to Lender and ~~absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; and~~ (MG) ~~Lender shall be satisfied that making~~ the Net Proceeds ~~available for Restoration shall be permitted pursuant~~ together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to ~~REMIC Requirements and, in that regard, Lender may require Borrower to deliver a REMIC Opinion in connection therewith~~cover the cost of the Restoration. (ii) The Net Proceeds shall be held by Lender in the Casualty and Condemnation Subaccount and, until disbursed in accordance with the provisions of this Section ~~7.4(b~~5.4(d), 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~~ Properties 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 the prior ~~review and acceptance in all respects by~~ approval of 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~~ Restoration, as well as the contracts under which they have been engaged, shall be subject to ~~prior review and acceptance by~~ the approval of 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~~ recovering, holding and advancing the Net Proceeds ~~available~~ for the Restoration including, without limitation, reasonable ~~counsel~~ attorneys’ fees and disbursements and the Casualty Consultant’s ~~fees~~fees and disbursements, 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~~ less the ~~Restoration~~ Casualty Retainage. The term “~~Restoration~~ Casualty Retainage” shall mean, as ~~used~~ to each contractor, subcontractor or materialman engaged in ~~this Subsection 7.4(b) shall mean~~ 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 ~~such time as~~ the ~~Casualty Consultant certifies to Lender that Net Proceeds representing 50% of the required~~ Restoration ~~have~~ has 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~~completed. The ~~Restoration~~ Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this ~~Subsection 7.4(b~~Section 5.4(d), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The ~~Restoration~~ 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 7.4(b~~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 and quasi-governmental authorities~~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~~ Casualty Retainage, ; provided, however, that Lender will release the portion of the ~~Restoration~~ Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which (x) the Casualty Consultant certifies to Lender that ~~the~~ such contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of ~~the~~ such contractor’s, subcontractor’s or materialman’s contract, ~~and~~ (y) 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 (z) Lender receives an endorsement to the Title Insurance Policy insuring the ~~lien~~ continued priority of the ~~Security Instrument~~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 ~~Restoration~~ 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: Loan Agreement (American Homes 4 Rent)

Restoration. ~~The following provisions~~ If the Demised Premises shall ~~apply in connection~~ be damaged or destroyed, Tenant shall with reasonable diligence cause the ~~Restoration~~ Demised Premises to be repaired, restored and rebuilt to its former condition provided that, after deduction from such insurance proceeds of the ~~Property: (a) Subject to Section 7.4(c) hereof~~reasonable costs and expenses, if any, incurred by Landlord in the ~~Net Proceeds shall be less than~~ collection of such proceeds, including without limitation the ~~Restoration Threshold~~ reasonable fees and disbursements of counsel to Landlord, all net proceeds of insurance received by Landlord with respect to the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to damage or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds destruction shall be made available ~~for Restoration~~ to Tenant to be used toward the payment of repairing, rebuilding and restoring the Property so damaged or destroyed, provided that ~~each of the following conditions are met:~~ (~~A) no Event of Default shall have occurred and be continuing; (B) (1~~i) in the event such net proceeds are not adequate to cover the ~~Net Proceeds are insurance proceeds~~cost of repair, ~~less than thirty percent (30%) of each of (i) fair market value~~ restoration or rebuilding as determined by Landlord, Tenant shall deposit with Landlord the amount of the ~~Property as reasonably determined by Lender~~difference between the net proceeds and the estimated cost of such repair, ~~and~~ restoration or replacement, (ii) ~~rentable area~~ all liens, inchoate or perfected, which may arise for or from or result by reason of ~~the Property has been damaged~~work, ~~destroyed~~ materials or ~~rendered unusable as a result of a Casualty~~ equipment for or ~~(2)~~ in ~~the event the Net Proceeds are condemnation proceeds~~connection with such repairs, ~~less than ten percent (10%) of each of (i) the fair market value of the Property as reasonably determined~~ rebuilding or restorations shall be removed by ~~Lender and (ii) rentable area of the Property is taken~~bonding, ~~such land is located along the perimeter~~ deposit or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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 otherwise within thirty (30) days after ~~the issuance of a building permit with respect thereto) and shall diligently pursue the same~~ notice to ~~satisfactory completion in compliance with all applicable Legal Requirements~~Tenant, 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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~~ such net proceeds shall be ~~subject to prior review and acceptance~~ made available in ~~all respects by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”). Lender shall have the use of~~ each case only after the plans and specifications have been submitted to Landlord and approved by Landlord, (iv) payments shall be made from said insurance funds to Tenant on the terms and conditions as may be reasonably set forth by Landlord, (v) the repairs and restorations must be completed free of all liens for work, labor or materials, and all ~~permits~~such work must conform to all applicable laws, ~~licenses~~ regulations, ordinances, rules, orders and ~~approvals required or obtained in connection with the Restoration. The identity~~ requirements of the ~~contractors~~federal, ~~subcontractors~~ state and ~~materialmen engaged in the Restoration shall be subject to prior review~~ municipal authorities and ~~acceptance by Lender~~ departments having jurisdiction, and ~~the Casualty Consultant,~~ (vi) Tenant covenants that it will receive such ~~acceptance not to be unreasonably withheld or delayed. All costs~~ balance of insurance proceeds and ~~expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including, without limitation, reasonable counsel fees~~ all advances made out of such insurance proceeds as hereinabove mentioned and ~~disbursements and the Casualty Consultant’s fees, shall be paid by Borrower. Borrower shall~~ will have the right to ~~settle all claims under~~ receive 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 same as a ~~defense~~ trust fund to be applied first for the ~~payment~~ purpose of paying the cost of such ~~claim. If an Event of Default exists, Lender shall, at its election, have the exclusive right to settle or adjust~~ repair and restoration before using 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 same 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 materialmanother purpose.

Appears in 1 contract

Samples: Lease (Smith Corona Corp)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the Property~~any Property or Properties affected by a Casualty: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~shall~~ reasonably expected to be received in connection with any single Casualty event is less than the ~~Restoration~~ Casualty Threshold Amount, then, (i) if no Event of Default shall have occurred and ~~the costs of completing the Restoration shall~~ be ~~less than the Restoration Threshold~~continuing and, ~~the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all~~ within sixty (60) days of the ~~conditions set forth in Section 7.4(b)(i) are met and~~ date of the occurrence of such Casualty, Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration of the affected Properties in accordance with the terms of this Agreement, then (A) if Net Proceeds are paid by the insurance company directly to Borrower subsequent to delivering such undertaking, such Net Proceeds may be retained by Borrower (for the avoidance of doubt, Net Proceeds received by Borrower prior to delivering such undertaking shall be immediately paid to Lender as required by Section 5.2), (B) if Net Proceeds are paid by the insurance company to Lender, such Net Proceeds will be disbursed by Lender to Borrower and (C) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of Section 5.4(c) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall be applied to the prepayment of the Debt in accordance with Section 2.4.3(c), (D) Borrower shall prepay the Loan in an amount equal to the positive difference between such Net Proceeds and the Allocated Loan Amount for the affected Properties, together with all interest and other amounts required to be paid in connection therewith under Section 2.4.5, and (E) following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, Lender shall release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (x) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees). (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~are equal~~ reasonably expected to or be received in connection with any single Casualty event is greater than the ~~Restoration~~ Casualty Threshold ~~or the costs of completing the Restoration are equal to or greater than the Restoration Threshold~~Amount, ~~Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.~~ then, (i) ~~The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A)~~ if no Event of Default shall have occurred and be ~~continuing;~~ continuing and, within sixty (B60) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as days of the date of the occurrence of such ~~fire or other casualty or taking~~Casualty, ~~whichever~~ Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the ~~case may be, shall remain in full force and effect during and after the completion~~ Restoration of the ~~Restoration~~affected Properties in accordance with the terms of this Agreement, ~~notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and~~ then (A) Borrower ~~furnishes~~ shall immediately deliver to Lender ~~evidence satisfactory~~ any Net Proceeds paid to Borrower as required by Section 5.2 and (B) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of and subject to the conditions of Section 5.4(d) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender ~~that all Tenants under Major Leases~~ any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall ~~continue~~ be applied to ~~operate their respective space at~~ the ~~Property after the completion~~ prepayment of the ~~Restoration;~~ Debt in accordance with Section 2.4.3(c), (D) Borrower shall prepay the Loan in an amount equal to the positive difference between such Net Proceeds and the Allocated Loan Amount for the affected Properties, together with all interest and other amounts required to be paid in connection therewith under Section 2.4.5, and (E) following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, Lender shall release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (x) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees). (c) If Borrower elects to undertake the Restoration of a Property or Properties pursuant to Section 5.4(a), (i) Borrower shall commence ~~(or shall cause the commencement of)~~ the Restoration as soon as reasonably practicable (but in no event later than ~~thirty~~ ninety (3090) days after ~~the issuance of a building permit with respect thereto~~such Casualty occurs) and shall diligently pursue the same to satisfactory ~~completion~~ completion; (ii) Borrower shall cause the affected Property and the use thereof after the Restoration to be in compliance with and permitted under all applicable Legal Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (iii) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal ~~Requirements~~Requirements and the Renovation Standards and (iv) Borrower shall deliver, ~~including~~or cause to be delivered, ~~without limitation~~to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, ~~all applicable Environmental Laws;~~which budget shall be reasonably acceptable to Lender. (Ed) ~~Lender~~ If Borrower elects to undertake the Restoration of a Property or Properties pursuant to Section 5.4(b), the following provisions 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~~ apply: (1i) the Net ~~Proceeds~~Proceeds shall be made available to Borrower for Restoration upon the determination of Lender that the following conditions are met: (i) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than ninety (90) days after such Casualty occurs) and shall diligently pursue the same to (a) (ii), ~~(2) the insurance coverage referred to in Section 7.1(a)(iii) above~~if applicable, 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; (Hiii) 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, as extended pursuant to Section 2.7, (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 ~~Major Leases~~Lease, (43) such time as may be required under applicable Legal Requirements or (54) six (6) months prior to the expiration of the insurance coverage referred to in Section ~~7.1(a)(iii) above;~~5.1.1 (Ia) (ii); (iv) Borrower shall ~~execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender and its counsel pursuant to~~ cause 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 7.4(b); (J) the~~ affected Property and the use thereof after the Restoration ~~will~~ to be in compliance with and permitted under all applicable Legal ~~Requirements;~~ Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (Kv) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal ~~Requirements;~~ Requirements and the Renovation Standards; (Lvi) 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 ~~satisfied, in its sole~~ reasonably acceptable to Lender and ~~absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; and~~ (Mvii) ~~Lender shall be satisfied that making~~ the Net Proceeds ~~available for Restoration shall be permitted pursuant~~ together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to ~~REMIC Requirements and, in that regard, Lender may require Borrower to deliver a REMIC Opinion in connection therewith~~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 ~~7.4(b~~5.4(d), 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~~ Properties 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 the prior ~~review and acceptance in all respects by~~ approval of 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~~ Restoration, as well as the contracts under which they have been engaged, shall be subject to ~~prior review and acceptance by~~ the approval of 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~~ recovering, holding and advancing the Net Proceeds ~~available~~ for the Restoration including, without limitation, reasonable ~~counsel~~ attorneys’ fees and disbursements and the Casualty Consultant’s ~~fees~~fees and disbursements, 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~~ less the ~~Restoration~~ Casualty Retainage. The term “~~Restoration~~ Casualty Retainage” shall mean, as ~~used~~ to each contractor, subcontractor or materialman engaged in ~~this Subsection 7.4(b) shall mean~~ 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 ~~such time as~~ the ~~Casualty Consultant certifies to Lender that Net Proceeds representing 50% of the required~~ Restoration ~~have~~ has 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~~completed. The ~~Restoration~~ Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this ~~Subsection 7.4(b~~Section 5.4(d), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The ~~Restoration~~ 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 7.4(b~~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 and quasi-governmental authorities~~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~~ Casualty Retainage, ; provided, however, that Lender will release the portion of the ~~Restoration~~ Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which (x) the Casualty Consultant certifies to Lender that ~~the~~ such contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of ~~the~~ such contractor’s, subcontractor’s or materialman’s contract, ~~and~~ (y) 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 (z) Lender receives an endorsement to the Title Insurance Policy insuring the ~~lien~~ continued priority of the ~~Security Instrument~~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 ~~Restoration~~ 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: Loan Agreement (Invitation Homes Inc.)

Restoration. ~~The~~ Subject to the rights of Mortgage Loan Lender and the obligations of Mortgage Loan Borrower and Maryland Owner under the Mortgage Loan Documents (each of which shall control in the event of any conflict until such time the Mortgage Loan may be paid or satisfied), the following provisions shall apply in connection with the Restoration of the Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the applicable Restoration Threshold and the costs of completing the Restoration shall be less than the applicable Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower and Property Owners, as the case may be, upon receipt, provided that all of the conditions set forth in Section ~~7.4(b)(i~~8.4(b)(i) below and (in the case of Xxxxx Fargo Mortgage Loan Property) those conditions set forth in Section 8.4(b)(i) of the Xxxxx Fargo Mortgage Loan Agreement are each met and Borrower delivers to Lender a written undertaking by Property Owners to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement and (in the case of Xxxxx Fargo Mortgage Loan Property) the Xxxxx Fargo Mortgage Loan Agreement. (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the applicable Restoration Threshold or the costs of completing the Restoration are equal to or greater than the applicable Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section ~~7.4.~~ 8.4. The term “Net Proceeds” for purposes of this Section 8.4 means: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ the net amount of ~~the following conditions are met:~~ all insurance proceeds received by Lender pursuant to Section 8.1(a)(i), (Aiv), (vi), (vii) 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 each of (i) fair market value of the Property as reasonably determined by Lender, and (iiviii) ~~rentable area of the Property has been damaged, destroyed or rendered unusable~~ as a result of a ~~Casualty~~ Casualty, after deduction of its reasonable costs and expenses (including, reasonable counsel fees), if any, in collecting the same (“Insurance Proceeds”), or ~~(2) in the event the Net Proceeds are condemnation proceeds, less than ten percent (10%) of each of (i) the fair market value of the Property as reasonably determined by Lender and~~ (ii) ~~rentable area~~ the net amount of the ~~Property is taken~~Award as a result of a Condemnation, ~~such land is located along~~ after deduction of its reasonable costs and expenses (including reasonable counsel fees), if any, in collecting the ~~perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property;~~ same (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 delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking“Condemnation Proceeds”), 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 1 contract

Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the~~ any Individual Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ In the event that the projected Net Proceeds ~~shall be less than the Restoration Threshold~~ and the costs of completing the Restoration ~~shall be~~ are each less than the ~~Restoration Threshold~~Threshold Amount, Borrower may settle and adjust any claim without the ~~Net Proceeds will~~ consent of Lender and agree with the insurance company or companies on the amount to be ~~disbursed by Lender to Borrower~~ paid upon ~~receipt,~~ the loss; provided that such adjustment is carried out in a competent and timely manner. Provided that all of the conditions set forth in Subsections (A), (D), (F), (G), (I) and (J) of Section ~~7.4(b)(i~~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 herein, Borrower is hereby authorized to collect and receive any such Insurance Proceeds and apply them to the costs of the Restoration in accordance with the terms of this Agreement. (b) ~~Subject to Section 7.4(c) hereof, if~~ In the event that either the projected Net Proceeds ~~are equal to or greater than the Restoration Threshold~~ or the costs of completing the Restoration are either equal to or ~~greater than~~ exceed the ~~Restoration Threshold~~Threshold Amount Borrower may settle and adjust any claim with the prior consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that (A) if Borrower has not commenced or diligently pursued the claims process with the applicable insurance company or companies and as a result thereof, Lender takes over the claims process as provided in Section 6.2, then Lender may settle and adjust such claims in a reasonable and expeditious manner and (B) upon the occurrence and during the continuance of an Event of Default, Lender may settle and adjust any claim without the consent of Borrower. In such events, Borrower or Lender, as the case may be, may agree with the insurance company or companies on the amount to be paid on the loss. All reasonable efforts will be made to ensure that the proceeds of any such policy shall be paid solely to Lender but, if for any reason Borrower or Wyndham shall also be a dual payee, then Borrower and/or Wyndham, as applicable, shall endorse and/or deliver to Lender all such proceeds within three (3) Business Days following Borrower's and/or Wyndham's, as applicable, receipt thereof, and provided no Event of Default has occurred and is continuing, Lender shall make the Net Proceeds available for the Restoration in accordance with ~~the provisions~~ this Section 6.4. The term "Net Proceeds" for purposes of this Section ~~7.4.~~ 6.4 shall mean: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ the net amount of ~~the following conditions are met:~~ all insurance proceeds received pursuant to Section 6.1 (Aa)(i), (iv), (vi), (vii) 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 each of (i) fair market value of the Property as reasonably determined by Lender, and (iiviii) ~~rentable area of the Property has been damaged, destroyed or rendered unusable~~ as a result of ~~a Casualty~~ such damage or destruction, after deduction of its reasonable costs and expenses (2) including, but not limited to, reasonable counsel fees), if any, in ~~the event the Net Proceeds are condemnation proceeds~~collecting same ("Insurance Proceeds"), ~~less than ten percent (10%) of each of (i) the fair market value of the Property as reasonably determined by Lender and~~ or (ii) ~~rentable area~~ the net amount of the ~~Property is taken~~Award, ~~such land is located along the perimeter or periphery~~ after deduction of ~~the Property~~reasonable costs and expenses (including, ~~no portion of the Improvements is located on such land and such taking does~~ but not ~~materially impair the existing access to the Property;~~ limited to, reasonable counsel fees), if any, in collecting same (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 delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking"Condemnation Proceeds"), whichever the case may be, ~~shall remain~~ plus (in ~~full force~~ the case of (i) and ~~effect during and after~~ (ii) above) any interest or other income earned on the ~~completion~~ investment of the ~~Restoration, notwithstanding the occurrence of any such Casualty~~ Insurance Proceeds 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 Condemnation 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 therewithhereof. (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 1 contract

Samples: Loan Agreement (Wyndham International Inc)

Restoration. The following provisions shall apply in connection with the Restoration of the Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 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~~ fifteen percent (1015%) of each of (i) the fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no material portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 ~~fire~~ Casualty or ~~other casualty or taking~~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 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~~responsible party therefore to) 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 Legal Requirements~~Applicable Laws, 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~~ Casualty or ~~other casualty or taking~~ 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) 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~~ Underwritable Cash Flow of the Property will ~~not~~ be ~~less than the fair market value~~ sufficient to cover all carrying costs and ~~cash flow~~ operating expenses of the ~~Property as the same existed immediately prior to the applicable Casualty or Condemnation~~Property; (HG) 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~~ Anticipated Repayment 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 Major Leases, (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, 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; (IH) 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 7.4(b); (JI) 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 ~~Legal Requirements;~~Casualty, Condemnation and/or Restoration; and (K) the Restoration shall be done and completed in an a reasonably expeditious and diligent fashion and in material compliance with ~~all applicable Legal Requirements; (L) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of~~ the Property will not be limited or restricted by the terms of the ZLDA; 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 therewithDocuments and all Applicable Law. (ii) The Net Proceeds shall be held by Lender in an interest-bearing account (bearing interest at a rate established by Lender, 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 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 's or materialman’s '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”), such acceptance 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, 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~~ withheld, conditioned 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 Casualty Consultant’s 's reasonable fees, shall be paid by Borrower. Borrower shall have the right to settle all claims under the Policies ~~jointly with~~ (subject to Lender'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, 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's, subcontractor’s 's or materialman’s '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 1 contract

Samples: Loan Agreement (Cole Credit Property Trust Iv, Inc.)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject~~ If the Premises or the Building or a part thereof are materially damaged by any fire, flood, earthquake or other casualty, Landlord shall have the right to terminate this Lease upon written notice to Tenant if: (i) Landlord reasonably determines that proceeds necessary to pay the full cost of repair is not available from Landlord's insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant's Share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within three hundred sixty five (365) days after the date of the damage; (iii) an uncured Event of Default by Tenant has occurred; or (iv) the material damage occurs during the final twelve (12) months of the Term as the Term maybe extended to Tenant pursuant to Section ~~7.4(c~~3.3. Landlord shall notify Tenant in writing ("LANDLORD'S NOTICE") ~~hereof~~within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord's Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if ~~the Net Proceeds~~ no such date is specified, such termination shall be ~~less than~~ the ~~Restoration Threshold and the costs~~ date of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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 AgreementLandlord's Notice). (b) ~~Subject~~ If Landlord has the right to terminate this Lease pursuant to Section ~~7.4(c~~11.1(a) ~~hereof~~and does not elect to so terminate this Lease, and provided that at the time of Landlord's Notice neither an Event of Default exists nor has Landlord delivered Tenant a notice of any failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of Default, then within ten (10) days following delivery of Landlord's Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord's Notice specifies that Landlord has determined that the ~~Net Proceeds are equal~~ Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant's continued use of the Premises. If Tenant fails to ~~or greater than the Restoration Threshold or the costs of completing the Restoration are equal~~ provide such termination notice within such ten (10) day period, Tenant shall be deemed to ~~or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of~~ have waived any termination right under this Section ~~7.4~~11.1(b) or any other applicable law. (ic) ~~The Net Proceeds shall be made available 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~~ 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 that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access material damage to the ~~Property; (C) Leases demising in the aggregate a percentage amount equal to~~ Building or greater than 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, 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 Premises resulting 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 1 contract

Samples: Lease Agreement (Hyseq Inc)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the~~ a Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to ~~Borrower~~ Borrowers upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and ~~Borrower delivers~~ Borrowers 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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 each of (i) the fair market value of ~~the~~ such Property as reasonably determined by Lender, and (ii) the rentable area of ~~the~~ such 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 fair market value of ~~the~~ such Property as reasonably determined by Lender and (ii) the rentable area of ~~the~~ such Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (C) Leases demising in the aggregate a percentage amount equal to or greater than 75% of the total rentable space in of the ~~Property which has been demised under executed and delivered Leases~~ Properties are 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 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~~ Borrowers 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~~Applicable Laws, in all material respects, 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~~ such 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~~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~~Restoration and re-leasing of the Property, the fair market value and cash flow of ~~the~~ such Property will not be less than the fair market value and cash flow of the Property as the same existed ~~immediately prior to~~ on the ~~applicable Casualty or Condemnation~~Closing Date; (HG) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) ~~six~~ three (63) 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 Major Leases, (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, (3) such time as may be required under applicable zoning law, ordinance, rule or regulation in order to repair and restore such Property to the condition it was in immediately prior to such fire or other casualty or taking, or (4) the earliest date required for such completion under the terms of any Material Agreements, or REA; (IH) 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 7.4(b); (J) the such Property and the use thereof after the Restoration will be in material compliance with and permitted under any REA, any Material Agreements and all ~~applicable Legal Requirements;~~Applicable Law; and (KI) the Restoration shall be done and completed in an expeditious and diligent fashion and in material compliance with any REA, any Material Agreements and all applicable Legal Requirements; (L) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 therewithApplicable 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~~Instruments, 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~~ Borrowers 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~~ such Property 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 issuing the Title Insurance Policy. (iii) All plans and specifications required in connection with the Restoration shall be subject to prior review and reasonable 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~~ All such plans and specifications and all permits, licenses and approvals required or obtained in connection with the ~~Restoration~~Restoration shall be assigned to Lender as additional collateral for the Loan and Lender shall have the use of the same. The identity of the contractors, material subcontractors and materialmen engaged in the Restoration shall be subject to prior review and reasonable acceptance by Lender and the Casualty Consultant~~, such acceptance not to be unreasonably withheld or delayed~~. All reasonable actual 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~~Borrowers. ~~Borrower~~ Borrowers shall have the right to settle all claims under the Policies jointly with Lender, provided that (a) no Event of Default exists, (b) ~~Borrower~~ Borrowers promptly and with commercially reasonable diligence ~~negotiates~~ negotiate 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.from

Appears in 1 contract

Samples: Loan Agreement (STAG Industrial, Inc.)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject~~ If the Premises or the Building or a part thereof are materially damaged by any fire, flood, earthquake or other casualty, Landlord shall have the right to ~~Section 7.4(c~~terminate this Lease upon written notice to Tenant if (i) ~~hereof~~Landlord reasonably determines that proceeds necessary to pay the full cost of repair are not available from Landlord's insurance, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be responsible for Tenant's Share); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an Event of Default by Tenant has occurred; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in writing ("Landlord's Notice") within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord estimates that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date specified for termination by Landlord's Notice (which termination date shall in no event be later than sixty (60) days following the date of the damage, or, if ~~the Net Proceeds~~ no such date is specified, such termination shall be ~~less than~~ the ~~Restoration Threshold and the costs~~ date of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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 AgreementLandlord's Notice). (b) If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord's Notice neither an Event of Default exists nor has Landlord delivered to Tenant a notice of any failure by Tenant to fulfill an obligation under this Lease which, unless cured by Tenant within the applicable grace period, would constitute an Event of Default, then within ten (10) days following delivery of Landlord's Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord's Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the date of damage or (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a materially adverse impact on Tenant's continued use of the Premises. If Tenant fails to provide such termination notice within such ten (10) day period, Tenant shall be deemed to have waived any termination right under this Section 11.1(b) or any other applicable law. (c) In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building or Premises resulting from a casualty, Landlord shall repair all material damage to the Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Subject to any provision to the contrary in the Work Letter, such repair by Landlord shall include repair of material damage to the Tenant Improvements constructed pursuant to the Work Letter. Landlord's repair of material damage shall be at Landlord's sole cost and expense except for any insurance deductible (for which Tenant shall "be responsible for Tenant's Share). Landlord shall have the right, but not the obligation, to repair or replace any other leasehold improvements made by Tenant or any Alterations (as defined in Section ~~7.4(c~~7.3) ~~hereof~~constructed by Tenant as part of Landlord's repair of material damage, if in which case Tenant shall make available to Landlord upon demand insurance proceeds from insurance required to be maintained by Tenant. If Landlord elects to repair or replace such leasehold improvements and/or Alterations, all insurance proceeds available for such repair or replacement shall be made available to Landlord. Landlord shall have no liability to Tenant in the ~~Net Proceeds are equal to or greater than~~ event that the ~~Restoration Threshold~~ Premises or the ~~costs of completing~~ Building has not been fully repaired within the ~~Restoration are equal~~ time period specified by Landlord in Landlord's Notice to ~~or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration~~ Tenant as described in ~~accordance with~~ Section 11.1(a). Notwithstanding the provisions of this ~~Section 7.4. (i) The Net Proceeds~~ Article XI, the repair of damage to the Premises to the extent such damage is not material shall be ~~made available for Restoration provided that each of the following conditions are met: (A) no Event of Default shall have occurred~~ governed by Sections 7.1 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access 7.2. Notwithstanding anything to the ~~Property;~~ contrary contained in this Section 11.1(c), if for any reasons other than delays caused by Tenant or other matters beyond Landlord's reasonable control, the Premises and/or the Building have not been substantially repaired within three hundred sixty-five (C365) ~~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 delivered Leases in effect as of~~ days after the date of the ~~occurrence~~ damage, then Tenant may, by written notice to Landlord given at any time thereafter but prior to the actual date of ~~such fire or other casualty or taking, whichever~~ the ~~case may be, shall remain in full force and effect during and after the~~ substantial 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 repair of the ~~Restoration; (D) Borrower shall commence (~~Premises or ~~shall cause~~ the ~~commencement of) the Restoration as soon as reasonably practicable (but in no event later than~~ Building, elect to terminate this Lease effective thirty (30) days from and after the ~~issuance~~ date of ~~a building permit with respect thereto) and~~ such notice to Landlord, provided that if Landlord 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 substantially complete 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 repairs on or before the ~~earliest~~ effective date of such termination, then Tenant's election to ~~occur~~ terminate this Lease shall thereupon be cancelled and of no further force or effect. Notwithstanding the foregoing, if at any time during the construction period, Landlord reasonably determines that the substantial completion of said repairs will be delayed beyond that date which is three hundred sixty-five (1365) ~~six (6) months prior to the Maturity Date, (2) six (6) months~~ days after the ~~occurrence~~ date of the damage, then Landlord may notify Tenant in writing of such ~~fire or other casualty or taking~~determination and of a new outside date for completion of such repairs, ~~(3) the earliest date required for such completion under the terms of any Major Leases, (4) such time as may be required under applicable Legal Requirements or~~ and Tenant must elect within five (5) business days of receipt of such notice to either terminate this Lease or waive its right to terminate this Lease, provided such repairs are substantially completed (but for Tenant-caused delays and/or force-majeure delays) within thirty (30) days following the ~~expiration~~ new outside date established by Landlord in such notice to Tenant. Tenant's failure to elect to terminate this Lease within such five (5) business day period shall be deemed Tenant's waiver of its right to terminate this Lease as provided in this paragraph as to the previous outside date, but not as to the new outside date established by said notice. (d) Commencing on the date of such material damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the Floor Area of the Premises that is rendered unusable by the damage from time to time bears to the total Floor Area of the Premises, as determined by Landlord, but only to the extent that Landlord is entitled to reimbursement from the proceeds of the business interruption insurance ~~coverage referred~~ required to ~~in Section 7.1(a)(iii) above;~~be maintained by Tenant pursuant to Exhibit D. (Ie) ~~Borrower~~ Landlord shall ~~execute~~ not be required to repair or replace any improvements or fixtures that Tenant is obligated to repair or replace pursuant to Section 7.1 or any other provision of this Lease and ~~deliver~~ Tenant shall continue to ~~Lender a completion guaranty~~ be obligated to so repair or replace any such improvements or fixtures, notwithstanding any provisions to the contrary in ~~form and substance satisfactory to Lender and its counsel pursuant~~ this Article XI. In addition, but subject to the provisions of ~~which Borrower~~ Section 10.5, in the event the damage or destruction to the Premises or Building are due in substantial part to the fault or neglect of Tenant or its employees, subtenants, invitees or representatives, the costs of such repairs or replacement to the Premises or Building shall ~~guaranty~~ be borne by Tenant, and in addition, Tenant shall not be entitled to ~~Lender the lien-free completion by Borrower of the Restoration in accordance with~~ terminate this Lease as a result, notwithstanding the provisions of ~~this Subsection 7.4(b~~Section 11.1(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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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. (iif) ~~The Net Proceeds~~ Tenant shall ~~be held by Lender and, until disbursed~~ fully cooperate with Landlord in ~~accordance with~~ removing Tenant's personal property and any debris from the ~~provisions~~ Premises to facilitate all inspections of ~~this Section 7.4(b), shall constitute additional security for~~ the ~~Debt and other obligations under this Agreement, the Security Instrument, the Note~~ Premises 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 making 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”)repairs. 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 Notwithstanding anything to the contrary ~~set forth above~~ contained in this ~~Subsection 7.4(b)~~Lease, ~~be less than~~ if Landlord in good faith believes there is a risk of injury to persons or damage to property from entry into the ~~amount actually held back~~ Building or Premises following any damage or destruction thereto, Landlord may restrict entry into the Building or the Premises by ~~Borrower from contractors~~Tenant, ~~subcontractors~~ its employees, agents and ~~materialmen engaged~~ contractors in a non-discriminatory manner, without being deemed to have violated Tenant's rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the ~~Restoration~~Premises. ~~The Restoration Retainage~~ Upon request, Landlord shall ~~not be released until~~ consult with Tenant to determine if there are safe methods of entry into the ~~Casualty Consultant certifies~~ Building or the Premises solely in order to ~~Lender that the Restoration has been completed~~ allow Tenant to retrieve files, data 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 authoritiescomputers, and ~~Lender receives evidence satisfactory~~ necessary inventory, subject however to ~~Lender that the costs~~ all indemnities and waivers of ~~the Restoration have been paid~~ liability from Tenant to Landlord contained in ~~full or will be paid in full out~~ this Lease and any additional indemnities and waivers 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 liability 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 Landlord 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 materialmanrequire.

Appears in 1 contract

Samples: Lease Agreement (Hireright Inc)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the Property~~any Property affected by a Casualty: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~shall~~ reasonably expected to be received in connection with any single Casualty event is less than the ~~Restoration~~ Casualty Threshold Amount, then, (i) if no Event of Default shall have occurred and ~~the costs of completing the Restoration shall~~ be ~~less than the Restoration Threshold~~continuing and, ~~the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all~~ within sixty (60) days of the ~~conditions set forth in Section 7.4(b)(i) are met and~~ date of the occurrence of such Casualty, Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration of the affected Properties in accordance with the terms of this Agreement, then (A) if Net Proceeds are paid by the insurance company directly to Borrower subsequent to delivering such undertaking, such Net Proceeds may be retained by Borrower (for the avoidance of doubt, Net Proceeds received by Borrower prior to delivering such undertaking shall be immediately paid to Lender as required by Section 5.2), (B) if Net Proceeds are paid by the insurance company to Lender, such Net Proceeds will be disbursed by Lender to Borrower and (C) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of Section 5.4(c) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall be applied to the prepayment of the Debt in an amount equal to the Release Amount for such Property in accordance with Section 2.4.2(c), (D) Borrower shall prepay the Loan in an amount equal to the excess, if any, of the Release Amount for such Property over such Net Proceeds, and (E) promptly following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, if any, Lender shall (x) release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (A) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (B) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (y) disburse to Borrower (A) in the case of a substitution of a Substitute Property for such Property, the Net Proceeds paid by the insurance company and (B) in the case of the payment of the Release Amount for such Property, the Net Proceeds paid by the insurance company in excess of the Release Amount for such Property, if any; provided that, during the continuance of a Cash Sweep Period, the applicable Net Proceeds shall instead be delivered to the Cash Collateral Subaccount and disbursed in accordance with Section 6.6.3. (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~are equal~~ reasonably expected to or be received in connection with any single Casualty event is greater than the ~~Restoration~~ Casualty Threshold ~~or the costs of completing the Restoration are equal to or greater than the Restoration Threshold~~Amount, ~~Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.~~ then, (i) ~~The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A)~~ if no Event of Default shall have occurred and be ~~continuing;~~ continuing and, within sixty (B60) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as days of the date of the occurrence of such ~~fire or other casualty or taking~~Casualty, ~~whichever~~ Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the ~~case may be, shall remain in full force and effect during and after the completion~~ Restoration of the ~~Restoration~~affected Properties in accordance with the terms of this Agreement, ~~notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and~~ then (A) Borrower ~~furnishes~~ shall immediately deliver to Lender ~~evidence satisfactory~~ any Net Proceeds paid to Borrower as required by Section 5.2 and (B) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of and subject to the conditions of Section 5.4(d) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender ~~that all Tenants under Major Leases~~ any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall ~~continue~~ be applied to ~~operate their respective space at~~ the ~~Property after the completion~~ prepayment of the ~~Restoration;~~ Debt in an amount equal to the Release Amount for such Property in accordance with Section 2.4.2(c), (D) Borrower shall prepay the Loan in an amount equal to the excess, if any, of the Release Amount for the affected Properties over such Net Proceeds, and (E) promptly following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, if any, Lender shall (x) release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (A) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (B) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (y) disburse to Borrower (A) in the case of a substitution of a Substitute Property for such Property, the Net Proceeds paid by the insurance company and (B) in the case of the payment of the Release Amount for such Property, the Net Proceeds paid by the insurance company in excess of the Release Amount for such Property, if any; provided that, during the continuance of a Cash Sweep Period, the applicable Net Proceeds shall instead be delivered to the Cash Collateral Subaccount and disbursed in accordance with Section 6.6.3. (c) If Borrower elects to undertake the Restoration a Property or Properties pursuant to Section 5.4(a), (i) Borrower shall, subject to applicable Legal Requirements, commence ~~(or shall cause the commencement of)~~ the Restoration as soon as reasonably practicable (but in no event later than ~~thirty~~ ninety (3090) days after ~~the issuance of a building permit with respect thereto~~such Casualty occurs) and shall diligently pursue the same to satisfactory ~~completion~~ completion; (ii) Borrower shall cause the affected Property and the use thereof after the Restoration to be in compliance in all material respects with and permitted under all applicable Legal Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction, in all material respects; (iii) 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 Legal Requirements and the Renovation Standards and (iv) for any Restoration of a Property with a total expected cost exceeding $25,000, 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. (d) If Borrower elects to undertake the Restoration of a Property or Properties pursuant to Section 5.4(b), the following provisions shall apply: (i) the Net Proceeds shall be made available to Borrower for Restoration upon the determination of Lender that the following conditions are met: (A) Borrower shall, subject to applicable Legal Requirements, ~~including, without limitation, all applicable Environmental Laws;~~ commence the Restoration as soon as reasonably practicable (Ebut in no event later than ninety (90) days after such Casualty occurs) and shall diligently pursue the same to satisfactory completion; (B) Lender shall be satisfied that any operating ~~deficits~~ deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the ~~Property~~ Properties as a result of the occurrence of ~~any such fire or other casualty or taking~~ the Casualty, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section ~~7.1(a)(iii) above~~5.1.1(a)(ii), if applicable, 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; (HC) 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 Initial Maturity Date, as extended pursuant to Section 2.8, (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 ~~Major Leases~~Lease, (43) such time as may be required under applicable Legal Requirements or (54) six (6) months prior to the expiration of the insurance coverage referred to in Section ~~7.1(a)(iii) above;~~5.1.1 (Ia) (ii); (D) Borrower shall ~~execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender and its counsel pursuant to~~ cause 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 7.4(b); (J) the~~ affected Property and the use thereof after the Restoration ~~will~~ to be in compliance with and permitted under all applicable Legal ~~Requirements;~~ Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (KE) 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 Legal ~~Requirements;~~ Requirements and the Renovation Standards; (LF) for any Restoration of a Property with a total expected cost exceeding $25,000, 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 ~~satisfied, in its sole~~ reasonably acceptable to Lender and ~~absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; and~~ (MG) ~~Lender shall be satisfied that making~~ the Net Proceeds ~~available for Restoration shall be permitted pursuant~~ together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to ~~REMIC Requirements and, in that regard, Lender may require Borrower to deliver a REMIC Opinion in connection therewith~~cover the cost of the Restoration. (ii) The Net Proceeds shall be held by Lender in the Casualty and Condemnation Subaccount and, until disbursed in accordance with the provisions of this Section ~~7.4(b~~5.4(d), 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~~ similar liens or encumbrances ~~of any nature whatsoever~~ on the ~~Property~~ Properties 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 the prior ~~review and acceptance in all respects by~~ approval of Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”)) and, in each case such approval shall not 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, subcontractors and materialmen engaged in the ~~Restoration~~ Restoration, as well as the contracts under which they have been engaged, shall be subject to ~~prior review and acceptance by~~ the approval of Lender and the Casualty Consultant, in each case such ~~acceptance~~ approval shall not to be unreasonably ~~withheld~~ withheld, conditioned or delayed. All costs and expenses incurred by Lender in connection with ~~making~~ recovering, holding and advancing the Net Proceeds ~~available~~ for the Restoration including, without limitation, reasonable ~~counsel~~ attorneys’ fees and disbursements and the Casualty Consultant’s ~~fees~~fees and disbursements, 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~~ less the ~~Restoration~~ Casualty Retainage. The term “~~Restoration~~ Casualty Retainage” shall mean, as ~~used~~ to each contractor, subcontractor or materialman engaged in ~~this Subsection 7.4(b) shall mean~~ 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 ~~such time as~~ the ~~Casualty Consultant certifies to Lender that Net Proceeds representing 50% of the required~~ Restoration ~~have~~ has 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~~completed. The ~~Restoration~~ Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this ~~Subsection 7.4(b~~Section 5.4(d), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The ~~Restoration~~ 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 7.4(b~~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 and quasi-governmental authorities~~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~~ Casualty Retainage, ; provided, however, that Lender will release the portion of the ~~Restoration~~ Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which (x) the Casualty Consultant certifies to Lender that ~~the~~ such contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of ~~the~~ such contractor’s, subcontractor’s or materialman’s contract, ~~and~~ (y) 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 (z) Lender receives an endorsement to the Title Insurance Policy insuring the ~~lien~~ continued priority of the ~~Security Instrument~~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 ~~Restoration~~ 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: Loan Agreement (Colony Starwood Homes)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the Property~~any Property or Properties affected by a Casualty: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~shall~~ reasonably expected to be received in connection with any single Casualty event is less than the ~~Restoration~~ Casualty Threshold Amount, then, (i) if no Event of Default shall have occurred and ~~the costs of completing the Restoration shall~~ be ~~less than the Restoration Threshold~~continuing and, ~~the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all~~ within sixty (60) days of the ~~conditions set forth in Section 7.4(b)(i) are met and~~ date of the occurrence of such Casualty, Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration of the affected Properties in accordance with the terms of this Agreement, then (A) if Net Proceeds are paid by the insurance company directly to Borrower subsequent to delivering such undertaking, such Net Proceeds may be retained by Borrower (for the avoidance of doubt, Net Proceeds received by Borrower prior to delivering such undertaking shall be immediately paid to Lender as required by Section 5.2), (B) if Net Proceeds are paid by the insurance company to Lender, such Net Proceeds will be disbursed by Lender to Borrower and (C) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of Section 5.4(c) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall be applied to the prepayment of the Debt in accordance with Section 2.4.3(c), (D) Borrower shall prepay the Loan in an amount equal to the positive difference between such Net Proceeds and the Allocated Loan Amount for the affected Properties, together with all interest and other amounts required to be paid in connection therewith under Section 2.4.5, and (E) following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, Lender shall release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (x) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees). (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~are equal~~ reasonably expected to or be received in connection with any single Casualty event is greater than the ~~Restoration~~ Casualty Threshold ~~or the costs of completing the Restoration are equal to or greater than the Restoration Threshold~~Amount, ~~Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.~~ then, (i) ~~The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A)~~ if no Event of Default shall have occurred and be ~~continuing;~~ continuing and, within sixty (B60) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as days of the date of the occurrence of such ~~fire or other casualty or taking~~Casualty, ~~whichever~~ Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the ~~case may be, shall remain in full force and effect during and after the completion~~ Restoration of the ~~Restoration~~affected Properties in accordance with the terms of this Agreement, ~~notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and~~ then (A) Borrower ~~furnishes~~ shall immediately deliver to Lender ~~evidence satisfactory~~ any Net Proceeds paid to Borrower as required by Section 5.2 and (B) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of and subject to the conditions of Section 5.4(d) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender ~~that all Tenants under Major Leases~~ any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall ~~continue~~ be applied to ~~operate their respective space at~~ the ~~Property after the completion~~ prepayment of the ~~Restoration;~~ Debt in accordance with Section 2.4.3(c), (D) Borrower shall prepay the Loan in an amount equal to the positive difference between such Net Proceeds and the Allocated Loan Amount for the affected Properties, together with all interest and other amounts required to be paid in connection therewith under Section 2.4.5, and (E) following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, Lender shall release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (x) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees). (c) If Borrower elects to undertake the Restoration of a Property or Properties pursuant to Section 5.4(a), (i) Borrower shall commence ~~(or shall cause the commencement of)~~ the Restoration as soon as reasonably practicable (but in no event later than ~~thirty~~ ninety (3090) days after ~~the issuance of a building permit with respect thereto~~such Casualty occurs) and shall diligently pursue the same to satisfactory ~~completion~~ completion; (ii) Borrower shall cause the affected Property and the use thereof after the Restoration to be in compliance with and permitted under all applicable Legal Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (iii) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal ~~Requirements~~Requirements and the Renovation Standards and (iv) Borrower shall deliver, ~~including~~or cause to be delivered, ~~without limitation~~to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, ~~all applicable Environmental Laws;~~which budget shall be reasonably acceptable to Lender. (Ed) If Borrower elects to undertake the Restoration of a Property or Properties pursuant to Section 5.4(b), the following provisions shall apply: (i) the Net Proceeds shall be made available to Borrower for Restoration upon the determination of Lender that the following conditions are met: (i) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than ninety (90) days after such Casualty occurs) and shall diligently pursue the same to satisfactory completion; (ii) Lender shall be satisfied that any operating ~~deficits~~ deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the ~~Property~~ Properties as a result of the occurrence of ~~any such fire or other casualty or taking~~ the Casualty, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section ~~7.1(a)(iii~~5.1.1 (a) ~~above~~(ii), if applicable, 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; (Hiii) 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~~) 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 ~~Major Leases~~Lease, (43) such time as may be required under applicable Legal Requirements or (54) six (6) months prior to the expiration of the insurance coverage referred to in Section ~~7.1(a)(iii) above;~~5.1.1 (Ia) (ii); (iv) Borrower shall ~~execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender and its counsel pursuant to~~ cause 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 7.4(b); (J) the~~ affected Property and the use thereof after the Restoration ~~will~~ to be in compliance with and permitted under all applicable Legal ~~Requirements;~~ Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (Kv) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal ~~Requirements;~~ Requirements and the Renovation Standards; (Lvi) 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 ~~satisfied, in its sole~~ reasonably acceptable to Lender and ~~absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; and~~ (Mvii) ~~Lender shall be satisfied that making~~ the Net Proceeds ~~available for Restoration shall be permitted pursuant~~ together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to ~~REMIC Requirements and, in that regard, Lender may require Borrower to deliver a REMIC Opinion in connection therewith~~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 ~~7.4(b~~5.4(d), 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~~ Properties 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 the prior ~~review and acceptance in all respects by~~ approval of 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~~ Restoration, as well as the contracts under which they have been engaged, shall be subject to ~~prior review and acceptance by~~ the approval of 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~~ recovering, holding and advancing the Net Proceeds ~~available~~ for the Restoration including, without limitation, reasonable ~~counsel~~ attorneys’ fees and disbursements and the Casualty Consultant’s ~~fees~~fees and disbursements, 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~~ less the ~~Restoration~~ Casualty Retainage. The term “~~Restoration~~ Casualty Retainage” shall mean, as ~~used~~ to each contractor, subcontractor or materialman engaged in ~~this Subsection 7.4(b) shall mean~~ 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 ~~such time as~~ the ~~Casualty Consultant certifies to Lender that Net Proceeds representing 50% of the required~~ Restoration ~~have~~ has 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~~completed. The ~~Restoration~~ Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this ~~Subsection 7.4(b~~Section 5.4(d), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The ~~Restoration~~ 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 7.4(b~~Section 5.4(d) 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~~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~~ Casualty Retainage, ; provided, however, that Lender will release the portion of the ~~Restoration~~ Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which (x) the Casualty Consultant certifies to Lender that ~~the~~ such contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of ~~the~~ such contractor’s, subcontractor’s or materialman’s contract, ~~and~~ (y) 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 (z) Lender receives an endorsement to the Title Insurance Policy insuring the ~~lien~~ continued priority of the ~~Security Instrument~~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 ~~Restoration~~ 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: Loan Agreement (Invitation Homes Inc.)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject~~ If any Net Award is in excess of $500,000 (such amount to ~~Section 7.4(c~~be increased on each anniversary of the Commencement Date by the CPI Ratio), Landlord (or Lender if required by any Mortgage) ~~hereof, if~~ shall hold the entire Net ~~Proceeds shall be less than~~ Award in a fund (the "Restoration Fund") and disburse amounts from the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund only in accordance with the ~~terms~~ following conditions: (i) prior to commencement of restoration, (A) the architects, contracts, contractors, plans and specifications and a budget for the restoration shall have been reasonably approved by Landlord and (B) Landlord and Lender shall be provided with acceptable performance and payment bonds which insure satisfactory completion of and payment for the restoration, are in an amount and form and have a surety reasonably acceptable to Landlord in an amount not to exceed the cost of restoration, and name Landlord and Lender as additional dual obligees; (ii) at the time of any disbursement, no Event of Default shall exist and no mechanics' or materialmen's liens shall have been filed against the Premises affected by such Casualty or Condemnation and remain undischarged or not bonded against or affirmatively insured against by the title company; (iii) disbursements shall be made from time to time in an amount not exceeding the cost of the work completed since the last disbursement, upon receipt of (A) reasonably satisfactory evidence, including architects' certificates, of the stage of completion, the estimated total cost of completion and performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (C) contractors' and subcontractors' sworn statements as to completed work and the cost thereof for which payment is requested, (D) a satisfactory bringdown of title insurance and (E) other reasonably requested evidence of cost and payment so that Landlord can verify that the amounts disbursed from time to time are represented by work that is completed, in place and free and clear of mechanics' and materialmen's lien claims; (iv) each request for disbursement shall be accompanied by a certificate of Tenant, signed by the president or a vice president of Tenant, describing the work for which payment is requested, stating the cost incurred in connection therewith, stating that Tenant has not previously received payment for such work and, upon completion of the work, also stating that the work has been fully completed and complies with the applicable requirements of this ~~Agreement~~Lease; (v) Landlord may retain the same percentage of the restoration fund as and to the extent as may be retained by Tenant under its construction contract with its general contractor (which shall not be less than 10% until 50% completion) until the restoration is fully completed; (vi) if the Restoration Fund is held by Landlord, the Restoration Fund shall not be commingled with Landlord's other funds and shall bear interest at a rate agreed to by Landlord and Tenant; and (vii) such other reasonable conditions as Landlord may impose. (b) ~~Subject~~ Prior to ~~Section 7.4(c) hereof~~commencement of restoration and at any time during restoration, if the ~~Net Proceeds are equal to or greater than the Restoration Threshold or the costs~~ estimated cost of completing the ~~Restoration are equal~~ restoration work free and clear of all liens, as determined by Landlord, exceeds the amount of the Net Award available for such restoration, the amount of such excess shall, upon demand by Landlord, be paid by Tenant to ~~or greater than~~ Landlord to be added to the Restoration ~~Threshold, Lender shall make the Net Proceeds available for~~ Fund. Any sum so added by Tenant which remains in the Restoration ~~in accordance with the provisions~~ Fund upon completion of ~~this Section 7.4. (i) The Net Proceeds~~ restoration shall be ~~made available for Restoration provided that each~~ refunded to Tenant. For purposes of determining the ~~following conditions are met: (A) no Event~~ source 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 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access funds with respect to the ~~Property; (C) Leases demising in the aggregate a percentage amount equal to or greater than 75%~~ disposition 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 funds remaining after the completion of restoration, the ~~Restoration, notwithstanding~~ Net Award shall be deemed to be disbursed prior to any amount added by Tenant. (c) If any sum remains in 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 Restoration Fund 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) restoration and ~~shall diligently pursue the same~~ any refund to ~~satisfactory completion in compliance with all applicable Legal Requirements~~Tenant pursuant to Section 19(b), ~~including, without limitation, all applicable Environmental Laws; (E) Lender~~ such sum shall be ~~satisfied that any operating deficits which will be incurred with respect to the Property as~~ retained by Landlord or, if required by a ~~result of the occurrence of any such fire~~ Note or ~~other casualty or taking will be covered out of (1) the Net Proceeds~~Mortgage, (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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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~~ Landlord to ~~settle all claims under the Policies jointly with~~ a 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 1 contract

Samples: Lease Agreement (Hologic Inc)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c~~Landlord (or Lender if required by any Mortgage) ~~hereof, if~~ shall hold any Net Award in excess of the ~~Net Proceeds shall be less than~~ Major Alteration Cost in a fund (the "RESTORATION FUND") and disburse amounts from the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund only in accordance with the terms of this Agreement. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.following conditions: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ prior to commencement of ~~the following conditions are met:~~ restoration, (A) the architects, contracts, contractors, plans and specifications for the restoration shall have been reasonably approved by Landlord, (B) Landlord and Lender shall be provided with mechanics' lien insurance (if available) and acceptable performance and payment bonds (or other security reasonably satisfactory to Landlord and Lender) which insure satisfactory completion of and payment for the restoration, are in an amount and form and have a surety acceptable to Landlord, and name Landlord and Lender as additional dual obligees, and (C) appropriate waivers of mechanics' and materialmen's liens shall have been filed; (ii) at the time of any disbursement, no Event of Default shall exist and no mechanics' or materialmen's liens shall have ~~occurred~~ been filed against any of the Leased Premises and ~~be continuing~~remain undischarged or unbonded; (iii) disbursements shall be made from time to time in an amount not exceeding the cost of the work completed since the last disbursement, upon receipt of (A) satisfactory evidence, including architects' certificates, of the stage of completion, the estimated total cost of completion and performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (1C) contractors' and subcontractors' sworn statements as to completed work and the cost thereof for which payment is requested, (D) a satisfactory bringdown of title insurance and (E) other evidence of cost and payment so that Landlord can verify that the amounts disbursed from time to time are represented by work that is completed, in place and free and clear of mechanics' and materialmen's lien claims; (iv) each request for disbursement shall be accompanied by a certificate of Tenant, signed by the ~~event~~ president or a vice president of Tenant, describing the ~~Net Proceeds are insurance proceeds~~work for which payment is requested, ~~less than thirty percent (30%) of each of (i) fair market value~~ stating the cost incurred in connection therewith, stating that Tenant has not previously received payment for such work and, upon completion of the ~~Property as reasonably determined by Lender~~work, ~~and (ii) rentable area of~~ also stating that the ~~Property~~ work has been ~~damaged, destroyed or rendered unusable as a result~~ fully completed and complies with the applicable requirements of ~~a Casualty or~~ this Lease; (2v) ~~in the event the Net Proceeds are condemnation proceeds, less than~~ Landlord may retain ten percent (10%) of ~~each of (i)~~ the ~~fair market value of~~ Restoration Fund until the ~~Property as reasonably determined by Lender and (ii) rentable area of the Property~~ restoration is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Propertyfully completed; (Cvi) ~~Leases demising~~ if the Restoration Fund is held by Landlord, the Restoration Fund shall not be commingled with Landlord's other funds and shall bear interest at a rate reasonably agreed to by Landlord and Tenant; and (vii) such other reasonable and customary conditions as Landlord or Lender may impose. (b) Prior to commencement of restoration and at any time during restoration, if the estimated cost of completing the restoration work free and clear of all liens, as determined by Landlord, exceeds the amount of the Net Award available for such restoration, the amount of such excess shall, upon demand by Landlord, be paid by Tenant to Landlord to be added to the Restoration Fund. Any sum so added by Tenant which remains in the ~~aggregate a percentage amount equal~~ Restoration Fund upon completion of restoration shall be refunded to ~~or greater than 75%~~ Tenant. For purposes of determining the ~~total rentable space in~~ source of funds with respect to the ~~Property which has been demised under executed and delivered Leases in effect as~~ disposition 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~~ funds remaining after the completion of restoration, the ~~Restoration, notwithstanding~~ Net Award shall be deemed to be disbursed prior to any amount added by Tenant. (c) If any sum remains in 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 Restoration Fund 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) restoration and ~~shall diligently pursue the same~~ any refund to ~~satisfactory completion in compliance with all applicable Legal Requirements~~Tenant pursuant to Paragraph 19(b), ~~including, without limitation, all applicable Environmental Laws; (E) Lender~~ such sum shall be ~~satisfied that any operating deficits which will be incurred with respect to the Property as~~ retained by Landlord or, if required by a ~~result of the occurrence of any such fire~~ Note or ~~other casualty or taking will be covered out of (1) the Net Proceeds~~Mortgage, (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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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~~ Landlord to ~~settle all claims under the Policies jointly with~~ a 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 1 contract

Samples: Lease Agreement (Atrium Corp)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the Property~~Properties affected by a Casualty: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~shall~~ reasonably expected to be received in connection with any single Casualty event is less than the ~~Restoration~~ C&C Threshold Amount, then, (i) if no Event of Default shall have occurred and ~~the costs of completing the Restoration shall~~ be ~~less than the Restoration Threshold~~continuing and, ~~the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all~~ within sixty (60) days of the ~~conditions set forth in Section 7.4(b)(i) are met and~~ date of the occurrence of such Casualty, Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration of the affected Properties in accordance with the terms of this Agreement, then (A) if Net Proceeds are paid by the insurance company directly to Borrower subsequent to delivering such undertaking, such Net Proceeds may be retained by Borrower (for the avoidance of doubt, Net Proceeds received by Borrower prior to delivering such undertaking shall be promptly (and in any event, within three (3) Business Days) paid to Lender as required by Section 5.2), provided that Borrower may elect to deposit (or cause to be deposited) such Net Proceeds into the Casualty and Condemnation Account, to be disbursed in accordance with Section 6.6, (B) if Net Proceeds are paid by the insurance company to Lender, such Net Proceeds will be disbursed by Lender to Borrower, provided that Borrower may elect to deposit (or cause to be deposited) such Net Proceeds into the Casualty and Condemnation Account, to be disbursed in accordance with Section 6.6, and (C) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of Section 5.4(c) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall promptly (and in any event, within three (3) Business Days) deliver to Lender any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall be applied to the prepayment of the Debt in accordance with Section 2.4.3(c), (D) Borrower shall prepay the Loan in an amount equal to the positive difference between such Net Proceeds and the Allocated Loan Amount for the affected Properties, together with all interest and other amounts required to be paid in connection therewith under Section 2.4.5, and (E) following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, Lender shall release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (x) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender as set forth on Exhibit F and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Xxxxxx’s reasonable attorneys’ fees and expenses). Additionally, throughout the term of the Loan if an Event of Default has occurred and is continuing, then Borrower shall pay to Lender, with respect to any payment of the Debt pursuant to this Section 5.4(a), an additional amount equal to the Yield Maintenance Premium; provided, however, that if an Event of Default is not continuing, then no Yield Maintenance Premium shall be payable. (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~are equal~~ reasonably expected to or be received in connection with any single Casualty event is greater than the ~~Restoration~~ C&C Threshold ~~or the costs of completing the Restoration are equal to or greater than the Restoration Threshold~~Amount, ~~Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.~~ then, (i) ~~The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A)~~ if no Event of Default shall have occurred and be ~~continuing;~~ continuing and, within sixty (B60) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as days of the date of the occurrence of such ~~fire or other casualty or taking~~Casualty, 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) 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 Major Leases, (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 delivers to Lender a ~~completion guaranty in form~~ written undertaking to expeditiously commence and ~~substance satisfactory~~ to ~~Lender and its counsel pursuant to~~ satisfactorily complete with due diligence the ~~provisions of which Borrower shall guaranty to Lender the lien-free completion by Borrower~~ Restoration of the ~~Restoration~~ affected Properties in accordance with the ~~provisions~~ terms of this ~~Subsection 7.4(b);~~ Agreement, then (JA) ~~the Property~~ Borrower shall deliver within three (3) Business Days to Lender any Net Proceeds paid to Borrower as required by Section 5.2 and ~~the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal Requirements;~~ (KB) ~~the Restoration~~ Borrower shall ~~be done and completed in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements; (L) Lender shall be satisfied, in its sole and absolute discretion, that~~ conduct the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; and (M) Lender shall be satisfied that making the Net Proceeds available for Restoration shall be permitted pursuant to REMIC Requirements and, affected Properties 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.90

Appears in 1 contract

Samples: Loan Agreement (Vinebrook Homes Trust, Inc.)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the~~ each Individual Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the ~~Net~~ Insurance Proceeds shall be less than the ~~Restoration~~ First Threshold ~~and~~ Amount, Borrower may determine in its reasonable discretion whether or not to apply the ~~costs of completing~~ Insurance Proceeds to the ~~Restoration~~ Restoration. (b) If the Condemnation Proceeds shall be less than the ~~Restoration Threshold~~Second Threshold Amount, Borrower may determine in its reasonable discretion whether or not to apply the Condemnation Proceeds to the Restoration. (c) If the Insurance Proceeds shall be equal to or greater than the First Threshold Amount but less than the Third Threshold Amount, the ~~Net~~ Insurance Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section ~~7.4(b)(i~~8.4(f)(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. (bd) ~~Subject to Section 7.4(c) hereof, if~~ If the ~~Net~~ Insurance Proceeds are equal to or greater than the ~~Restoration~~ Third Threshold ~~or the costs of completing the Restoration are equal to or greater than the Restoration Threshold~~Amount, Lender ~~shall~~ shall, in its sole discretion, determine whether to make the ~~Net~~ Insurance Proceeds available for the Restoration in accordance with the provisions of this Section ~~7.4~~8.4 or to apply the Net Proceeds to the payment of the Debt. (ie) ~~The Net Proceeds shall be made available for Restoration provided that each of~~ If the ~~following conditions are met: (A) no Event of Default shall have occurred and be continuing; (B) (1) in the event the Net~~ Condemnation 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (C) Leases demising in the aggregate a percentage amount equal to or greater than ~~75% of~~ the ~~total rentable space~~ Second Threshold Amount, Lender shall, in its sole discretion, determine whether to make 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 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 Condemnation 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 available for such completion under the terms of any Major Leases, (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 shall guaranty to Lender the lien-free completion by Borrower of the Restoration in accordance with the provisions of this ~~Subsection 7.4(b); (J)~~ Section 8.4 or to apply the ~~Property and~~ Net Proceeds to the ~~use thereof after~~ payment of the ~~Restoration will be in compliance with and permitted under all applicable Legal Requirements; (K)~~ Debt. Notwithstanding the ~~Restoration shall be done and completed in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements; (L)~~ foregoing, regardless of the amount of the Condemnation Proceeds, Lender ~~shall be satisfied~~shall, in its sole ~~and absolute~~ discretion, ~~that~~ determine whether to make the ~~Restoration of the Property will not be limited or restricted by the terms of the ZLDA; and (M) Lender shall be satisfied that making the Net~~ Condemnation Proceeds available for the 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~~ 8.4 or to apply the Condemnation Proceeds to the payment of the Debt if a threatened or actual Condemnation could reasonably be expected to result in (i) abatement of twelve and ~~other obligations under this Agreement, the Security Instrument, the Note and the other Loan Documents. The Net Proceeds~~ one-half percent (~~other than the Rent Loss Proceeds~~12.5%) ~~shall be disbursed by Lender to,~~ or ~~as directed by, Borrower from time to time during the course~~ more of the ~~Restoration, upon receipt of evidence satisfactory to Lender that~~ rent payable under all the leases at the applicable Individual Property or (ii) a material adverse effect on (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~~Individual Property, 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~~ uncured issues with respect to the ~~Policy under which such claim is brought has not raised any act~~ building, parking, access or zoning requirements applicable to the Individual Property, (B) the enforceability, validity, perfection or priority of the ~~insured~~ lien or security title of the Mortgage, as ~~a defense~~ applicable, or other Loan Documents or (C) the ability of Borrower to ~~the payment of such claim. If an Event of Default exists, Lender shall, at~~ perform its ~~election, have the exclusive right to settle or adjust any claims made~~ obligations under the ~~Policies in the event of a Casualty~~Loan Documents. (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 1 contract

Samples: Term Loan Agreement (Developers Diversified Realty Corp)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the~~ any Individual Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the ~~Restoration~~ Casualty/Condemnation Threshold Amount and the estimated costs of completing the Restoration shall be less than the ~~Restoration Threshold~~Casualty/Condemnation Threshold Amount, the Net Proceeds will be disbursed by Lender to Borrower upon ~~receipt~~receipt or shall be directed by Lender to be disbursed directly to Borrower, provided that Borrower certifies to Lender (A) that no Event of Default shall have occurred and be continuing at the time of the disbursement and (B) Borrower provides an Officer’s Certificate confirming Borrower will complete the Restoration in compliance with all of the conditions set forth in Section ~~7.4(b)(i~~6.4(b)(i)(C), (F), (G) ~~are met~~ and ~~Borrower delivers to Lender a written undertaking~~ (H) 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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the ~~Restoration~~ Casualty/Condemnation Threshold Amount or the costs of completing the Restoration ~~are~~ is equal to or greater than the ~~Restoration Threshold,~~ Casualty/Condemnation Threshold Amount Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section ~~7.4.~~ 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ the net amount of ~~the following conditions are met:~~ all insurance proceeds received by Lender pursuant to Section 6.1(a)(i), (Aiv), (ix) 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 each of (i) fair market value of the Property as reasonably determined by Lender, and (iix) ~~rentable area of the Property has been damaged, destroyed or rendered unusable~~ as a result of ~~a Casualty~~ such damage or destruction, after deduction of Lender’s and Borrower’s reasonable costs and expenses (2) including, but not limited to, reasonable counsel fees), if any, in collecting same (“Insurance Proceeds”): provided, that such costs and expenses of Borrower shall only be reimbursed if Lender is reasonably certain that there will be sufficient Net Proceeds to complete the ~~event~~ Restoration (it being understood that to the extent Net Proceeds exceed the Adjusted Release Amount for any applicable Individual Property and such Net Proceeds are ~~condemnation proceeds~~not being made available for Restoration, ~~less than ten percent (10%) of each of (i)~~ the ~~fair market value of the Property as reasonably determined by Lender and~~ foregoing proviso shall not apply), or (ii) ~~rentable area~~ the net amount of the ~~Property is taken~~Award, ~~such land is located along the perimeter or periphery~~ after deduction of ~~the Property~~Lender’s and Borrower’s reasonable costs and expenses (including, ~~no portion of the Improvements is located on such land and such taking does~~ but not ~~materially impair the existing access to the Property;~~ limited to, reasonable counsel fees), if any, in collecting same (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 delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking“Condemnation Proceeds”), 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 1 contract

Samples: Loan Agreement (BRE Select Hotels Corp)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c~~If any Net Award is in excess of $________________, Landlord (or Lender if required by any Mortgage) ~~hereof, if~~ shall hold the entire Net ~~Proceeds shall be less than~~ Award in a fund (the “Restoration Fund”) and disburse amounts from the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund only in accordance with the terms of this Agreement. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.following conditions: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ prior to commencement of ~~the following conditions are met:~~ restoration, (A) the architects, contracts, contractors, plans and specifications and a budget for the restoration shall have been approved by Landlord, (B) Landlord and Lender shall be provided with mechanics' lien insurance (if available) and acceptable performance and payment bonds which insure satisfactory completion of and payment for the restoration, are in an amount and form and have a surety acceptable to Landlord, and name Landlord and Lender as additional dual obligees, and (C) appropriate waivers of mechanics' and materialmen's liens shall have been filed; (ii) at the time of any disbursement, no Event of Default shall exist and no mechanics' or materialmen's liens shall have ~~occurred~~ been filed against any of the Leased Premises and ~~be continuing~~remain undischarged; (iii) disbursements shall be made from time to time in an amount not exceeding the cost of the Work completed since the last disbursement, upon receipt of (A) satisfactory evidence, including architects' certificates, of the stage of completion, the estimated total cost of completion and performance of the Work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (1C) contractors' and subcontractors' sworn statements as to completed Work and the cost thereof for which payment is requested, (D) a satisfactory bringdown of title insurance and (E) other evidence of cost and payment so that Landlord can verify that the amounts disbursed from time to time are represented by Work that is completed, in place and free and clear of mechanics' and materialmen's lien claims; (iv) each request for disbursement shall be accompanied by a certificate of Tenant, signed by the ~~event~~ president or a vice president of Tenant, describing the ~~Net Proceeds are insurance proceeds~~Work for which payment is requested, ~~less than thirty percent (30%) of each of (i) fair market value~~ stating the cost incurred in connection therewith, stating that Tenant has not previously received payment for such Work and, upon completion of the ~~Property as reasonably determined by Lender~~Work, ~~and (ii) rentable area of~~ also stating that the ~~Property~~ Work has been ~~damaged, destroyed or rendered unusable as a result~~ fully completed and complies with the applicable requirements of ~~a Casualty or~~ this Lease; (2v) ~~in the event the Net Proceeds are condemnation proceeds, less than~~ Landlord may retain ten percent (10%) of ~~each of (i)~~ the ~~fair market value of~~ Restoration Fund until the ~~Property as reasonably determined by Lender and (ii) rentable area of the Property~~ Work is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Propertyfully completed; (Cvi) ~~Leases demising~~ if the Restoration Fund is held by Landlord, the Restoration Fund shall not be commingled with Landlord's other funds and shall bear interest at a rate agreed to by Landlord and Tenant; and (vii) such other reasonable conditions as Landlord or Lender may impose. (b) Prior to commencement of restoration and at any time during restoration, if the estimated cost of completing the restoration Work free and clear of all liens, as determined by Landlord, exceeds the amount of the Net Award available for such restoration, the amount of such excess shall, upon demand by Landlord, be paid by Tenant to Landlord to be added to the Restoration Fund. Any sum so added by Tenant which remains in the ~~aggregate a percentage amount equal~~ Restoration Fund upon completion of restoration shall be refunded to ~~or greater than 75%~~ Tenant. For purposes of determining the ~~total rentable space in~~ source of funds with respect to the ~~Property which has been demised under executed and delivered Leases in effect as~~ disposition 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~~ funds remaining after the completion of restoration, the ~~Restoration, notwithstanding~~ Net Award shall be deemed to be disbursed prior to any amount added by Tenant. (c) If any sum remains in 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 Restoration Fund after ~~the~~ completion of the ~~Restoration;~~ Work and any refund to Tenant pursuant to Paragraph 19(b), such sum (Dthe “Remaining Sum”) ~~Borrower~~ shall ~~commence~~ be retained by Landlord or, if required by a Note or Mortgage, paid by Landlord to a Lender. [If the Remaining Sum is (i) retained by Landlord, each installment of Basic Rent payable on 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 Retention Date shall be ~~satisfied that any operating deficits~~ reduced by a fraction, the denominator of which ~~will~~ shall be ~~incurred with respect~~ the total amount of all Basic Rent due from such date to and including the ~~Property as a result~~ last Basic Rent Payment Date for the then existing Term and the numerator of which shall be 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~~Remaining Sum, or (3ii) ~~by other funds~~ paid to Lender, then each installment of ~~Borrower; (F) Lender~~ Basic Rent thereafter payable 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 reduced in the same ~~existed immediately prior~~ amount as payments are reduced under any Note if the Loan corresponding to such Note is reamortized to reflect such payment, in each case until such Remaining Sum has been applied in full or until 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~~Term has expired, (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 Major Leases, (4) such time as may be required under applicable Legal Requirements or (5) whichever occurs first. Upon 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 shall 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) Lender shall be satisfiedTerm, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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~~ Remaining Sum 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 not been so applied shall be ~~approved~~ retained by ~~the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman~~Landlord.]

Appears in 1 contract

Samples: Lease Agreement

Restoration. ~~The following provisions~~ Landlord (or Lender if required by any Mortgage) shall ~~apply~~ hold any Net Award in ~~connection with~~ excess of $500,000 (or such lesser amount as may be required by Lender, but not less than $250,000) in a fund (the "Restoration Fund") and disburse amounts ---------------- from the Restoration of the Property: (a) Subject to Section 7.4(c) hereof, if the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth Fund only in ~~Section 7.4(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~~ following conditions: prior to commencement of ~~this Agreement. (b) Subject to Section 7.4(c) hereof~~restoration, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A) the architects, contracts, contractors, plans and specifications and a budget for the restoration shall have been approved by Landlord, which approval shall not be unreasonably withheld, (B) Landlord and Lender shall be provided with mechanics' lien insurance (if available) and if the estimated cost of such restoration is in excess of $1,000,000 then, if requested by Landlord or Lender, acceptable performance and payment bonds or a letter of credit which insure satisfactory completion of and payment for the restoration, are in an amount and form and have a surety or bank, as applicable, acceptable to Landlord, and name Landlord and Lender as additional dual obligees, and (C) to the extent permitted under applicable Laws, appropriate waivers of mechanics' and materialmen's liens shall have been filed; at the time of any disbursement, no Event of Default shall exist and no mechanics' or materialmen's liens shall have ~~occurred~~ been filed against any of the Leased Premises and remain undischarged or removed of record (by bond or otherwise); disbursements shall be ~~continuing;~~ made from time to time in an amount not exceeding the cost of the work completed since the last disbursement, upon receipt of (A) satisfactory evidence, including architects' certificates, of the stage of completion, the estimated total cost of completion and performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (1C) the general contractors' sworn statements as to completed work and the cost thereof for which payment is requested and the payment of all subcontractors' for work performed to date, (D) a satisfactory `clean" contingency search of title revealing no intervening liens or encumbrances and (E) other evidence of cost and payment so that Landlord and Lender can verify that the amounts disbursed from time to time are represented by work that is completed, in place and free and clear of mechanics' and materialmen's lien claims that remain undischarged or removed of record (by bond or otherwise); each request for disbursement shall be accompanied by a certificate of Tenant, signed by the ~~event~~ president or a vice president of Tenant, describing the ~~Net Proceeds are insurance proceeds~~work for which payment is requested, ~~less than thirty percent (30%) of each of (i) fair market value~~ stating the cost incurred in connection therewith, stating that Tenant has not previously received payment for such work and, upon completion of the ~~Property as reasonably determined by Lender~~work, ~~and (ii) rentable area of~~ also stating that the ~~Property~~ work has been ~~damaged, destroyed or rendered unusable as a result~~ fully completed and complies with the applicable requirements of ~~a Casualty or (2) in the event the Net Proceeds are condemnation proceeds, less than~~ this Lease; Landlord may retain ten percent (10%) of ~~each~~ the Restoration Fund until the restoration is fully completed; the Restoration Fund shall not be commingled with Landlord's other funds and shall bear interest at a rate agreed to by Landlord and Tenant; and such other reasonable conditions as Landlord or Lender may impose. Prior to commencement of ~~(i)~~ restoration and at any time during restoration, if the ~~fair market value~~ estimated cost of completing the ~~Property~~ restoration work free and clear of all liens, as reasonably determined by ~~Lender and (ii) rentable area~~ Landlord, exceeds the amount of the ~~Property is taken~~Net Award available for such restoration, the amount of such ~~land is located along the perimeter or periphery of the Property~~excess shall, ~~no portion of the Improvements is located on such land and such taking does not materially impair the existing access~~ upon demand by Landlord, be paid by Tenant to Landlord to be added to the ~~Property; (C) Leases demising~~ Restoration Fund. Any sum so added by Tenant which remains in the ~~aggregate a percentage amount equal~~ Restoration Fund upon completion of restoration shall be refunded to ~~or greater than 75%~~ Tenant. For purposes of determining the ~~total rentable space in~~ source of funds with respect to the ~~Property which has been demised under executed and delivered Leases in effect as~~ disposition 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~~ funds remaining after the completion of restoration, the ~~Restoration, notwithstanding~~ Net Award shall be deemed to be disbursed prior to any amount added by Tenant. If any sum remains in 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 Restoration Fund after ~~the~~ completion of the ~~Restoration;~~ restoration and any refund to Tenant pursuant to Paragraph 19(b), such sum (Dthe "Remaining Sum)" shall be retained by Landlord or, if required by a Note or Mortgage, paid by Landlord to a Lender. If the Remaining Sum is (i) ~~Borrower shall commence (~~retained by Landlord, each installment of Basic Rent payable on 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 Retention Date shall be ~~satisfied that any operating deficits~~ reduced by a fraction, the denominator of which ~~will~~ shall be ~~incurred with respect~~ the total amount of all Basic Rent due from such date to and including the ~~Property as a result~~ last Basic Rent Payment Date for the then existing Term and the numerator of which shall be 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~~Remaining Sum, or (3ii) ~~by other funds~~ paid to Lender, then each installment of ~~Borrower; (F) Lender~~ Basic Rent thereafter payable 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 reduced in the same ~~existed immediately prior~~ amount as payments are reduced under any Note if the Loan corresponding to such Note is reamortized to reflect such payment, in each case until such Remaining Sum has been applied in full or until 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~~Term has expired, (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 Major Leases, (4) such time as may be required under applicable Legal Requirements or (5) whichever occurs first. Upon 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 shall guaranty to Lender the lien-free completion by Borrower Term, any portion 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will Remaining Sum which has not be limited or restricted by the terms of the ZLDA; 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, so applied 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 CasualtyTenant. (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 1 contract

Samples: Lease Agreement (Pw Eagle Inc)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c~~Landlord (or Lender if required by any Mortgage) ~~hereof, if~~ shall hold any Net Award in excess of $50,000 in a fund (the ~~Net Proceeds shall be less than~~ "Restoration Fund") and disburse amounts from the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund only in accordance with the terms of this Agreement. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.following conditions: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ prior to commencement of ~~the following conditions are met:~~ restoration, (A) the architects, contracts, contractors, plans and specifications for the restoration shall have been approved by Landlord, (B) Landlord and Lender shall be provided with mechanics' lien insurance (if available) and acceptable performance and payment bonds which insure satisfactory completion of and payment for the restoration, are in an amount and form and have a surety acceptable to Landlord, and name Landlord and Lender as additional dual obligees, and (C) appropriate waivers of mechanics' and materialmen's liens shall have been filed; (ii) at the time of any disbursement, no Event of Default shall exist and no mechanics' or materialmen's liens shall have ~~occurred~~ been filed against any of the Leased Premises and ~~be continuing~~remain undischarged; (iii) disbursements shall be made from time to time in an amount not exceeding the cost of the work completed since the last disbursement, upon receipt of (A) satisfactory evidence, including architects' certificates, of the stage of completion, the estimated total cost of completion and performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (1C) contractors' and subcontractors' sworn statements as to completed work and the cost thereof for which payment is requested, (D) a satisfactory bringdown of title insurance and (E) other evidence of cost and payment so that Landlord and Lender can verify that the amounts disbursed from time to time are represented by work that is completed, in place and free and clear of mechanics' and materialmen's lien claims; (iv) each request for disbursement shall be accompanied by a certificate of Tenant, signed by the ~~event~~ president or a vice president of Tenant, describing the ~~Net Proceeds are insurance proceeds~~work for which payment is requested, ~~less than thirty percent (30%) of each of (i) fair market value~~ stating the cost incurred in connection therewith, stating that Tenant has not previously received payment for such work and, upon completion of the ~~Property as reasonably determined by Lender~~work, ~~and (ii) rentable area of~~ also stating that the ~~Property~~ work has been ~~damaged, destroyed or rendered unusable as a result~~ fully completed and complies with the applicable requirements of ~~a Casualty or~~ this Lease; (2v) ~~in the event the Net Proceeds are condemnation proceeds, less than~~ Landlord may retain ten percent (10%) of ~~each of (i)~~ the ~~fair market value of~~ Restoration Fund until the ~~Property as reasonably determined by Lender and (ii) rentable area of the Property~~ restoration is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Propertyfully completed; (Cvi) ~~Leases demising~~ the Restoration Fund shall not be commingled with Landlord's other funds and shall bear interest at a rate agreed to by Landlord and Tenant; and (vii) such other reasonable conditions as Landlord or Lender may impose. (b) Prior to commencement of restoration and at any time during restoration, if the estimated cost of completing the restoration work free and clear of all liens, as determined by Landlord, exceeds the amount of the Net Award available for such restoration, the amount of such excess shall, upon demand by Landlord, be paid by Tenant to Landlord to be added to the Restoration Fund. Any sum so added by Tenant which remains in the ~~aggregate a percentage amount equal~~ Restoration Fund upon completion of restoration shall be refunded to ~~or greater than 75%~~ Tenant. For purposes of determining the ~~total rentable space in~~ source of funds with respect to the ~~Property which has been demised under executed and delivered Leases in effect as~~ disposition 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~~ funds remaining after the completion of restoration, the ~~Restoration, notwithstanding~~ Net Award shall be deemed to be disbursed prior to any amount added by Tenant. 26 (c) If any sum remains in 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 Restoration Fund 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) restoration and ~~shall diligently pursue the same~~ any refund to ~~satisfactory completion in compliance with all applicable Legal Requirements~~Tenant pursuant to Paragraph 19(b), ~~including, without limitation, all applicable Environmental Laws; (E) Lender~~ such sum shall be ~~satisfied that any operating deficits which will be incurred with respect to the Property as~~ retained by Landlord or, if required by a ~~result of the occurrence of any such fire~~ Note or ~~other casualty or taking will be covered out of (1) the Net Proceeds~~Mortgage, (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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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~~ Landlord to ~~settle all claims under the Policies jointly with~~ a 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 1 contract

Samples: Lease Agreement (Corporate Property Associates 12 Inc)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the Property~~any Property affected by a Casualty: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~shall~~ reasonably expected to be received in connection with any single Casualty event is less than the ~~Restoration~~ Casualty Threshold Amount, then, (i) if no Event of Default shall have occurred and ~~the costs of completing the Restoration shall~~ be ~~less than the Restoration Threshold~~continuing and, ~~the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all~~ within sixty (60) days of the ~~conditions set forth in Section 7.4(b)(i) are met and~~ date of the occurrence of such Casualty, Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration of the affected Properties in accordance with the terms of this Agreement, then (A) if Net Proceeds are paid by the insurance company directly to Borrower subsequent to delivering such undertaking, such Net Proceeds may be retained by Borrower (for the avoidance of doubt, Net Proceeds received by Borrower prior to delivering such undertaking shall be immediately paid to Lender as required by Section 5.2), (B) if Net Proceeds are paid by the insurance company to Lender, such Net Proceeds will be disbursed by Lender to Borrower and (C) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of Section 5.4(c) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall be applied to the prepayment of the Debt in an amount equal to the Release Amount for such Property in accordance with Section 2.4.2(c), (D) Borrower shall prepay the Loan in an amount equal to the excess, if any, of the Release Amount for such Property over such Net Proceeds, and (E) promptly following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, if any, Lender shall (x) release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (A) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (B) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (y) disburse to Borrower (A) in the case of a substitution of a Substitute Property for such Property, the Net Proceeds paid by the insurance company and (B) in the case of the payment of the Release Amount for such Property, the Net Proceeds paid by the insurance company in excess of the Release Amount for such Property, if any; provided that, during the continuance of a Cash Sweep Period, the applicable Net Proceeds shall instead be delivered to the Cash Collateral Subaccount and disbursed in accordance with Section 6.6.3 and after the Anticipated Repayment Date, the applicable Net Proceeds shall be delivered to the Cash Management Account. (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~are equal~~ reasonably expected to or be received in connection with any single Casualty event is greater than the ~~Restoration~~ Casualty Threshold ~~or the costs of completing the Restoration are equal to or greater than the Restoration Threshold~~Amount, ~~Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.~~ then, (i) ~~The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A)~~ if no Event of Default shall have occurred and be ~~continuing;~~ continuing and, within sixty (B60) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as days of the date of the occurrence of such ~~fire or other casualty or taking~~Casualty, ~~whichever~~ Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the ~~case may be, shall remain in full force and effect during and after the completion~~ Restoration of the ~~Restoration~~affected Properties in accordance with the terms of this Agreement, ~~notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and~~ then (A) Borrower ~~furnishes~~ shall immediately deliver to Lender ~~evidence satisfactory~~ any Net Proceeds paid to Borrower as required by Section 5.2 and (B) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of and subject to the conditions of Section 5.4(d) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender ~~that all Tenants under Major Leases~~ any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall ~~continue~~ be applied to ~~operate their respective space at~~ the ~~Property after the completion~~ prepayment of the ~~Restoration;~~ Debt in an amount equal to the Release Amount for such Property in accordance with Section 2.4.2(c), (D) Borrower shall prepay the Loan in an amount equal to the excess, if any, of the Release Amount for the affected Properties over such Net Proceeds, and (E) promptly following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, if any, Lender shall (x) release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (A) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (B) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (y) disburse to Borrower (A) in the case of a substitution of a Substitute Property for such Property, the Net Proceeds paid by the insurance company and (B) in the case of the payment of the Release Amount for such Property, the Net Proceeds paid by the insurance company in excess of the Release Amount for such Property, if any; provided that, during the continuance of a Cash Sweep Period, the applicable Net Proceeds shall instead be delivered to the Cash Collateral Subaccount and disbursed in accordance with Section 6.6.3 and after the Anticipated Repayment Date, the applicable Net Proceeds shall be delivered to the Cash Management Account. (c) If Borrower elects to undertake the Restoration a Property or Properties pursuant to Section 5.4(a), (i) Borrower shall, subject to applicable Legal Requirements, commence ~~(or shall cause the commencement of)~~ the Restoration as soon as reasonably practicable (but in no event later than ~~thirty~~ ninety (3090) days after ~~the issuance of a building permit with respect thereto~~such Casualty occurs) and shall diligently pursue the same to satisfactory ~~completion~~ completion; (ii) Borrower shall cause the affected Property and the use thereof after the Restoration to be in compliance in all material respects with and permitted under all applicable Legal Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction, in all material respects; (iii) 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 Legal Requirements and the Renovation Standards and (iv) for any Restoration of a Property with a total expected cost exceeding $25,000, 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. (d) If Borrower elects to undertake the Restoration of a Property or Properties pursuant to Section 5.4(b), the following provisions shall apply: (i) the Net Proceeds shall be made available to Borrower for Restoration upon the determination of Lender that the following conditions are met: (A) Borrower shall, subject to applicable Legal Requirements, ~~including, without limitation, all applicable Environmental Laws;~~ commence the Restoration as soon as reasonably practicable (Ebut in no event later than ninety (90) days after such Casualty occurs) and shall diligently pursue the same to satisfactory completion; (B) Lender shall be satisfied that any operating ~~deficits~~ deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the ~~Property~~ Properties as a result of the occurrence of ~~any such fire or other casualty or taking~~ the Casualty, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section ~~7.1(a)(iii) above~~5.1.1(a)(ii), if applicable, 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; (HC) 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 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 ~~Major Leases~~Lease, (43) such time as may be required under applicable Legal Requirements or (54) six (6) months prior to the expiration of the insurance coverage referred to in Section ~~7.1(a)(iii) above;~~5.1.1 (Ia) (ii); (D) Borrower shall ~~execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender and its counsel pursuant to~~ cause 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 7.4(b); (J) the~~ affected Property and the use thereof after the Restoration ~~will~~ to be in compliance with and permitted under all applicable Legal ~~Requirements;~~ Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (KE) 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 Legal ~~Requirements;~~ Requirements and the Renovation Standards; (LF) for any Restoration of a Property with a total expected cost exceeding $25,000, 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 ~~satisfied, in its sole~~ reasonably acceptable to Lender and ~~absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; and~~ (MG) ~~Lender shall be satisfied that making~~ the Net Proceeds ~~available for Restoration shall be permitted pursuant~~ together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to ~~REMIC Requirements and, in that regard, Lender may require Borrower to deliver a REMIC Opinion in connection therewith~~cover the cost of the Restoration. (ii) The Net Proceeds shall be held by Lender in the Casualty and Condemnation Subaccount and, until disbursed in accordance with the provisions of this Section ~~7.4(b~~5.4(d), 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~~ similar liens or encumbrances ~~of any nature whatsoever~~ on the ~~Property~~ Properties 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 the prior ~~review and acceptance in all respects by~~ approval of Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”), and in each case, such approval shall not 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, subcontractors and materialmen engaged in the ~~Restoration~~ Restoration, as well as the contracts under which they have been engaged, shall be subject to ~~prior review and acceptance by~~ the approval of Lender and the Casualty Consultant, in each case, such ~~acceptance~~ approval shall not to be unreasonably ~~withheld~~ withheld, conditioned or delayed. All costs and expenses incurred by Lender in connection with ~~making~~ recovering, holding and advancing the Net Proceeds ~~available~~ for the Restoration including, without limitation, reasonable ~~counsel~~ attorneys’ fees and disbursements and the Casualty Consultant’s ~~fees~~fees and disbursements, 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~~ less the ~~Restoration~~ Casualty Retainage. The term “~~Restoration~~ Casualty Retainage” shall mean, as ~~used~~ to each contractor, subcontractor or materialman engaged in ~~this Subsection 7.4(b) shall mean~~ 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 ~~such time as~~ the ~~Casualty Consultant certifies to Lender that Net Proceeds representing 50% of the required~~ Restoration ~~have~~ has 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~~completed. The ~~Restoration~~ Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this ~~Subsection 7.4(b~~Section 5.4(d), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The ~~Restoration~~ 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 7.4(b~~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 and quasi-governmental authorities~~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~~ Casualty Retainage, ; provided, however, that Lender will release the portion of the ~~Restoration~~ Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which (x) the Casualty Consultant certifies to Lender that ~~the~~ such contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of ~~the~~ such contractor’s, subcontractor’s or materialman’s contract, ~~and~~ (y) 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 (z) Lender receives an endorsement to the Title Insurance Policy insuring the ~~lien~~ continued priority of the ~~Security Instrument~~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 ~~Restoration~~ 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: Loan Agreement (American Homes 4 Rent)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the Property~~any Property affected by a Casualty: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~shall~~ reasonably expected to be received in connection with any single Casualty event is less than the ~~Restoration~~ Casualty Threshold Amount, then, (i) if no Event of Default shall have occurred and ~~the costs of completing the Restoration shall~~ be ~~less than the Restoration Threshold~~continuing and, ~~the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all~~ within sixty (60) days of the ~~conditions set forth in Section 7.4(b)(i) are met and~~ date of the occurrence of such Casualty, Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration of the affected Properties in accordance with the terms of this Agreement, then (A) if Net Proceeds are paid by the insurance company directly to Borrower subsequent to delivering such undertaking, such Net Proceeds may be retained by Borrower (for the avoidance of doubt, Net Proceeds received by Borrower prior to delivering such undertaking shall be immediately paid to Lender as required by Section 5.2), (B) if Net Proceeds are paid by the insurance company to Lender, such Net Proceeds will be disbursed by Lender to Borrower and (C) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of Section 5.4(c) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall be applied to the prepayment of the Debt in an amount equal to the Release Amount for such Property in accordance with Section 2.4.2(c), (D) Borrower shall prepay the Loan in an amount equal to the excess, if any, of the Release Amount for such Property over such Net Proceeds, and (E) promptly following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, if any, Lender shall (x) release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (A) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (B) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (y) disburse to Borrower (A) in the case of a substitution of a Substitute Property for such Property, the Net Proceeds paid by the insurance company and (B) in the case of the payment of the Release Amount for such Property, the Net Proceeds paid by the insurance company in excess of the Release Amount for such Property, if any; provided that, during the continuance of a Cash Sweep Period, the applicable Net Proceeds shall instead be delivered to the Cash Collateral Subaccount and disbursed in accordance with Section 6.6.3 and after the Anticipated Repayment Date, the applicable Net Proceeds shall be delivered to the Cash Management Account. (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~are equal~~ reasonably expected to or be received in connection with any single Casualty event is greater than the ~~Restoration~~ Casualty Threshold ~~or the costs of completing the Restoration are equal to or greater than the Restoration Threshold~~Amount, ~~Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.~~ then, (i) ~~The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A)~~ if no Event of Default shall have occurred and be ~~continuing;~~ continuing and, within sixty (B60) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as days of the date of the occurrence of such ~~fire or other casualty or taking~~Casualty, ~~whichever~~ Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the ~~case may be, shall remain in full force and effect during and after the completion~~ Restoration of the ~~Restoration~~affected Properties in accordance with the terms of this Agreement, ~~notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and~~ then (A) Borrower ~~furnishes~~ shall immediately deliver to Lender ~~evidence satisfactory~~ any Net Proceeds paid to Borrower as required by Section 5.2 and (B) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of and subject to the conditions of Section 5.4(d) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender ~~that all Tenants under Major Leases~~ any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall ~~continue~~ be applied to ~~operate their respective space at~~ the ~~Property after the completion~~ prepayment of the ~~Restoration;~~ Debt in an amount equal to the Release Amount for such Property in accordance with Section 2.4.2(c), (D) Borrower shall prepay the Loan in an amount equal to the excess, if any, of the Release Amount for the affected Properties over such Net Proceeds, and (E) promptly following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, if any, Lender shall (x) release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (A) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (B) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (y) disburse to Borrower (A) in the case of a substitution of a Substitute Property for such Property, the Net Proceeds paid by the insurance company and (B) in the case of the payment of the Release Amount for such Property, the Net Proceeds paid by the insurance company in excess of the Release Amount for such Property, if any; provided that, during the continuance of a Cash Sweep Period, the applicable Net Proceeds shall instead be delivered to the Cash Collateral Subaccount and disbursed in accordance with Section 6.6.3 and after the Anticipated Repayment Date, the applicable Net Proceeds shall be delivered to the Cash Management Account. (c) If Borrower elects to undertake the Restoration a Property or Properties pursuant to Section 5.4(a), (i) Borrower shall commence ~~(or shall cause the commencement of)~~ the Restoration as soon as reasonably practicable (but in no event later than ~~thirty~~ ninety (3090) days after ~~the issuance of a building permit with respect thereto~~such Casualty occurs) and shall diligently pursue the same to satisfactory ~~completion~~ completion; (ii) Borrower shall cause the affected Property and the use thereof after the Restoration to be in compliance in all material respects with and permitted under all applicable Legal Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction, in all material respects; (iii) 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 Legal ~~Requirements~~Requirements and the Renovation Standards and (iv) for any Restoration of a Property with a total expected cost exceeding $25,000, ~~including~~Borrower shall deliver, ~~without limitation~~or cause to be delivered, ~~all applicable Environmental Laws;~~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. (Ed) If Borrower elects to undertake the Restoration of a Property or Properties pursuant to Section 5.4(b), the following provisions shall apply: (i) the Net Proceeds shall be made available to Borrower for Restoration upon the determination of Lender that the following conditions are met: (A) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than ninety (90) days after such Casualty occurs) and shall diligently pursue the same to satisfactory completion; (B) Lender shall be satisfied that any operating ~~deficits~~ deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the ~~Property~~ Properties as a result of the occurrence of ~~any such fire or other casualty or taking~~ the Casualty, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section ~~7.1(a)(iii) above~~5.1.1(a)(ii), if applicable, 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; (HC) 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 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 ~~Major Leases~~Lease, (43) such time as may be required under applicable Legal Requirements or (54) six (6) months prior to the expiration of the insurance coverage referred to in Section ~~7.1(a)(iii) above;~~5.1.1 (Ia) (ii); (D) Borrower shall ~~execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender and its counsel pursuant to~~ cause 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 7.4(b); (J) the~~ affected Property and the use thereof after the Restoration ~~will~~ to be in compliance with and permitted under all applicable Legal ~~Requirements;~~ Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (KE) 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 Legal ~~Requirements;~~ Requirements and the Renovation Standards; (LF) for any Restoration of a Property with a total expected cost exceeding $25,000, 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 ~~satisfied, in its sole~~ reasonably acceptable to Lender and ~~absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; and~~ (MG) ~~Lender shall be satisfied that making~~ the Net Proceeds ~~available for Restoration shall be permitted pursuant~~ together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to ~~REMIC Requirements and, in that regard, Lender may require Borrower to deliver a REMIC Opinion in connection therewith~~cover the cost of the Restoration. (ii) The Net Proceeds shall be held by Lender in the Casualty and Condemnation Subaccount and, until disbursed in accordance with the provisions of this Section ~~7.4(b~~5.4(d), 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.requested

Appears in 1 contract

Samples: Loan Agreement (American Homes 4 Rent)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the~~ any Individual Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section ~~7.4(b)(i~~7.5(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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section ~~7.4~~7.5. (i) The Net Proceeds shall be made available 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 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 fair market value of the applicable Individual Property as reasonably determined by Lender and (ii) rentable area of the applicable Individual Property is taken, such land is located along the perimeter or periphery of the applicable Individual Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the applicable Individual Property; (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 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 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 ~~thirty~~ one hundred twenty (30120) 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 Condominium Documents; (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~~7.l(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,~~ 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~~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) ~~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 ~~Major Leases~~Leases and the Property Documents, (43) such time as may be required under applicable Legal Requirements or (54) 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 shall guaranty to Lender the lien-free completion by Borrower of the Restoration in accordance with the provisions of this Subsection 7.4(b)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~~Requirements and will be in compliance with the related Ground Lease, Property Documents and Condominium 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;~~intentionally omitted; and (L) ~~Lender shall be satisfied~~the Property Documents, Ground Lease, and the Condominium Documents, as applicable, will remain in ~~its sole~~ full force and ~~absolute discretion, that~~ effect during and after the Restoration and a Property Document Event shall not occur as a result of the Property will not be limited or restricted by the terms of the ZLDA; and (M) Lender shall be satisfied that making the Net Proceeds available for Restoration shall be permitted pursuant to REMIC Requirements andapplicable Casualty, ~~in that regard, Lender may require Borrower to deliver a REMIC Opinion in connection therewith~~Condemnation and/or Restoration. (ii) The Net Proceeds shall be held by ~~Lender~~ Xxxxxx and, until disbursed in accordance with the provisions of this Section ~~7.4(b~~7.5(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~~xxxxxxxx’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~~ Xxxxxx 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~~ Xxxxxx 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~~ Xxxxxx and the Casualty Consultant~~, such acceptance not to be unreasonably withheld or delayed~~. 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~~Xxxxxxxx. Borrower shall have the right to settle all claims under the Policies jointly with ~~Lender~~Xxxxxx, provided that (a) no Event of Default ~~exists~~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 Xxxxxxxx shall be permitted to settle claims without Xxxxxx’s consent so long as the Net Proceeds are less than the Restoration Threshold. If 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~~7.5(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~~7.5(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~~7.5(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~~ Xxxxxx 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 (or to the extent Lender is prohibited from requiring waivers under applicable law with respect to work performed or materials delivered, in each case which have yet to be paid for, subordinations, conditional waivers and/or other documentation reasonably satisfactory to Lender) and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may be reasonably requested by ~~Lender~~ Xxxxxx 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 1 contract

Samples: Loan Agreement (SITE Centers Corp.)

Restoration. ~~The~~ Subject to the rights of Mortgage Lender under the Mortgage Loan Documents and only to the extent the Mortgage Loan is not outstanding and has been paid in full, the following provisions shall apply in connection ~~with the~~ any Restoration of the ~~Property:~~Property (other than Section 7.4(b)(iii) below which shall apply both prior to and after the repayment of the Mortgage Loan): (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, 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 7.4(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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 each of (i) the fair market value of the Property as reasonably determined by Lender, and (ii) the 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~~ fifteen percent (1015%) of each of (i) the fair market value of the Property as reasonably determined by Lender and (ii) the rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no material portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 ~~fire~~ Casualty or ~~other casualty or taking~~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 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 cause Mortgage Borrower to 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~~Applicable Laws, 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~~ Casualty or ~~other casualty or taking~~ 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 Mortgage Borrower or 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~~ Underwritable Cash Flow of the Property will ~~not~~ be ~~less than the fair market value~~ sufficient to cover all carrying costs and ~~cash flow~~ operating expenses of the ~~Property as the same existed immediately prior to the applicable Casualty or Condemnation~~Property; (HG) 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 Major Leases, (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~~of the Mortgage Loan Agreement, 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; (IH) 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 7.4(b); (JI) 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 ~~Legal Requirements;~~Casualty, Condemnation and/or Restoration; and (K) the Restoration shall be done and completed in an a reasonably expeditious and diligent fashion and in material compliance with ~~all applicable Legal Requirements; (L) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of~~ the Property will not be limited or restricted by the terms of the ZLDA; 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 therewithDocuments and all Applicable Law. (ii) The Net Proceeds shall be held by Lender in an interest-bearing account (bearing interest at a rate established by Lender, 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~~Pledge Agreement, 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”), such acceptance 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, 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~~ withheld, conditioned 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 Casualty Consultant’s reasonable fees, shall be paid by Mortgage Borrower or Borrower. Mortgage Borrower shall have the right to settle all claims under the Policies ~~jointly with~~ (subject to Lender’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) Mortgage 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 Mortgage 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 Mortgage 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 1 contract

Samples: Mezzanine Loan Agreement (Cole Corporate Income Trust, Inc.)

Restoration. ~~The~~ (i) Any Loss Proceeds to be made available to the Company from the Proceeds Account to rebuild, repair, restore or replace the affected Property following ~~provisions~~ any Event of Loss shall ~~apply~~ be remitted to the Company by the Accounts Bank in ~~connection with~~ the ~~Restoration of~~ event that the ~~Property: (a) Subject~~ Net Available Amount is less than $5,000,000, provided that the Company shall have no obligation to ~~Section 7.4(c) hereof~~rebuild, repair, restore or replace the affected Property in the event that the Net Available Amount is less than $5,000,000, provided further that, if the ~~Net~~ Company elects not to apply (or not to cause the relevant ShipCo to apply) such Loss Proceeds ~~shall~~ to rebuild, repair, restore or replace the affected Property, such amounts may be ~~less than~~ transferred to the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Distribution Account in accordance with the ~~terms of this~~ Accounts Agreement. (bii) ~~Subject~~ Any Loss Proceeds to ~~Section 7.4(c) hereof~~be made available to the Company or the relevant ShipCo from the Proceeds Account to rebuild, if repair, restore or replace the affected Property following any Event of Loss shall be remitted to the Company or the relevant ShipCo by the Accounts Bank in the event that the Net ~~Proceeds are~~ Available Amount is equal to or greater than $5,000,000 if (A) the ~~Restoration Threshold or~~ Company shall have submitted a plan for such activities as soon as commercially practicable, but in no event more than 60 days after the ~~costs~~ occurrence of ~~completing~~ such Event of Loss and (B) the ~~Restoration are~~ Independent Engineer shall have delivered a certificate to the Collateral Agent to the effect that the Company plan is prudent and sound and the Net Available Amount deposited in the Proceeds Account is sufficient (together with all other monies reasonably expected to be available to the Company), in the reasonable opinion of the Independent Engineer, for such activities. Net Available Amounts equal to or greater than ~~the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be~~ $5,000,000 made available ~~for Restoration provided that each of~~ to the Company or the relevant ShipCo to rebuild, repair, restore or replace the affected Property following ~~conditions are met: (A) no~~ an Event of ~~Default~~ Loss shall ~~have occurred and~~ only be ~~continuing; (B) (1) in the event the Net Proceeds are insurance proceeds~~utilized for such activities and, 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does if not materially impair the existing access to the Property; (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 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 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) so utilized within 180 days after the ~~issuance~~ Event 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 feesLoss, 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 applied to the ~~Policy under which such claim is brought has not raised any act~~ prepayment 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 RestorationNotes, 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~~Section 8.1(b)(i), 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 1 contract

Samples: Note Purchase Agreement (Teekay Offshore Partners L.P.)

Restoration. ~~The following provisions shall apply in connection with the Restoration~~ If there is a partial Condemnation of the ~~Property: (a) Subject to Section 7.4(c) hereof, if the Net Proceeds shall be less than the Restoration Threshold~~ Facility and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 Lease remains in full force and effect ~~during and after~~ with respect to the ~~completion~~ Facility, Landlord shall make available to Tenant the portion of the ~~Restoration, notwithstanding~~ Award applicable to restoration of the ~~occurrence of any such Casualty or Condemnation, whichever the case may be~~Leased Property, and ~~Borrower furnishes to Lender evidence satisfactory to Lender that~~ Tenant shall accomplish all ~~Tenants under Major Leases shall continue to operate their respective space at~~ necessary restoration whether or not the ~~Property after~~ amount provided by the ~~completion~~ Condemnor for restoration is sufficient and, if such restoration is not capable of being completed and such Condemnation results in a material adverse effect on the operations of the ~~Restoration;~~ Facility, the Base Rent shall be reduced by such amount as may be agreed upon by Landlord and Tenant or, if they are unable to reach such an agreement within a period of ninety (~~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~~90) days after the ~~issuance~~ occurrence of ~~a building permit with respect thereto) and shall diligently pursue~~ the ~~same to satisfactory completion in compliance with all applicable Legal Requirements~~Condemnation, ~~including, without limitation, all applicable Environmental Laws; (E) Lender~~ then the Base Rent for the Facility shall be ~~satisfied that any operating deficits which will be incurred with respect to~~ proportionately reduced based on the ~~Property as a result~~ relative values 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)~~ property taken 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 condemnation 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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~~ Facility remaining subject to the Lease. In the event that Landlord and Tenant are unable to agree on such relative values within such ninety (90) day period, either Landlord or Tenant may request that such relative values be determined by an Expert in accordance with ~~respect~~ Section 34.1. Tenant shall restore such Leased Property (as nearly as possible under the circumstances) to ~~any contractor, subcontractor or materialman engaged in~~ a complete architectural unit of the ~~Restoration~~ same general character and condition as such Leased Property existing immediately prior to such Condemnation. If Tenant has not so restored the Leased Property and the Primary Intended Use has not recommenced by the date that is the fourth (4th) anniversary of the date ~~upon~~ on which Tenant can reasonably access the ~~Casualty Consultant certifies~~ Facility for the purpose of commencing restoration, any remaining Award shall be paid 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,~~ retained by Landlord free 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 clear of any ~~such portion of~~ claim by or through Tenant unless Xxxxxx is continuing to prosecute the ~~Restoration Retainage shall be approved by the surety company, if any, which has issued a payment~~ rebuilding or ~~performance bond~~ restoration with ~~respect to the contractor, subcontractor or materialman~~reasonable diligence.

Appears in 1 contract

Samples: Lease Agreement (Blackstone Real Estate Income Trust, Inc.)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the~~ any Individual Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Relevant Restoration Threshold and the costs of completing the Restoration shall be less than the Relevant Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in ~~Section 7.4(b)(i~~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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Relevant Restoration Threshold or the costs of completing the Restoration ~~are~~ is equal to or greater than the Relevant Restoration Threshold, then in either case Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this ~~Section 7.4~~SECTION 6.4(B). The term "NET PROCEEDS" for purposes of this SECTION 6.4 shall mean: (x) the net amount of all insurance proceeds received by Lender pursuant to SECTION 6.1 (A)(I), (IV), (IX) and (X) as a result of such damage or destruction, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in collecting same ("INSURANCE PROCEEDS"), or (y) the net amount of the Award, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel 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~~Insurance Proceeds, less than ~~thirty~~ twenty-five percent (3025%) of ~~each of (i) fair market value of~~ the ~~Property as reasonably determined by Lender, and (ii) rentable~~ total floor area of the Improvements on the Individual Property has been damaged, destroyed or rendered unusable as a result of a such Casualty or (2) in the event the Net Proceeds are ~~condemnation proceeds~~Condemnation Proceeds, less than ten percent (10%) of ~~each of (i)~~ the ~~fair market value of~~ land constituting the ~~Property as reasonably determined by Lender and (ii) rentable area of 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 and such taking does not materially impair the existing access to the Property~~land; (C) Leases demising in the aggregate a percentage amount equal to or greater than ~~75%~~ 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~~ Casualty or ~~other casualty or taking~~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 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 and/or Tenant, 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) 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 Major Leases~~respective Lease, ~~(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~~ will make all necessary repairs and ~~deliver to Lender a completion guaranty in form~~ restorations thereto at their sole cost 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 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 Documentsexpense. The ~~Net Proceeds (other than the Rent Loss Proceeds)~~ term "RENTABLE SPACE PERCENTAGE" 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 mean 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 percentage 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(bsixty-five percent (65%), 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 1 contract

Samples: Loan Agreement (Behringer Harvard Reit I Inc)

Restoration. The following provisions shall apply in connection with the Restoration of any Individual Property, provided, that in the event that the MGM/Mandalay Lease is in effect with respect the applicable Individual Property, Section 6.4(d) shall govern and control in all respects: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the ~~Restoration~~ Casualty/Condemnation Threshold Amount and the estimated costs of completing the Restoration shall be less than the ~~Restoration Threshold~~Casualty/Condemnation Threshold Amount, 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~~receipt or shall be directed by Lender to be disbursed directly to Borrower, provided that Borrower certifies to Lender (A) that no Event of Default shall have occurred and be continuing at the time of the disbursement and (B) Borrower provides an Officer’s Certificate confirming Borrower will complete the Restoration in compliance with all of the conditions set forth in Section ~~7.4(b)(i~~6.4(b)(i)(C), (F), (G) ~~are met~~ and ~~Borrower delivers to Lender a written undertaking~~ (H) 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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the ~~Restoration~~ Casualty/Condemnation Threshold Amount or the costs of completing the Restoration ~~are~~ is equal to or greater than the ~~Restoration Threshold~~Casualty/Condemnation Threshold Amount, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section ~~7.4.~~ 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ the net amount of ~~the following conditions are met: (A~~all insurance proceeds received by Lender pursuant to Section 6.1(a)(i), Section 6.1(a)(iv), Section 6.1(a)(ix) ~~no Event of Default shall have occurred~~ and ~~be continuing; (B~~Section 6.1(a)(x) (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~~ such damage or destruction, after deduction of Lender’s and Borrower’s reasonable costs and expenses (2) including, but not limited to, reasonable counsel fees), if any, in collecting same (“Insurance Proceeds”): provided, that such costs and expenses of Borrower shall only be reimbursed if Lender is reasonably certain that there will be sufficient Net Proceeds to complete the ~~event~~ Restoration (it being understood that to the extent Net Proceeds exceed the Debt and such Net Proceeds are ~~condemnation proceeds~~not being made available for Restoration, ~~less than ten percent (10%) of each of (i)~~ the ~~fair market value of the Property as reasonably determined by Lender and~~ foregoing proviso shall not apply), or (ii) ~~rentable area~~ the net amount of the ~~Property is taken~~Award, ~~such land is located along the perimeter or periphery~~ after deduction of ~~the Property~~Lender’s and Borrower’s reasonable costs and expenses (including, ~~no portion of the Improvements is located on such land and such taking does~~ but not ~~materially impair the existing access to the Property;~~ limited to, reasonable counsel fees), if any, in collecting same (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 delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking“Condemnation Proceeds”), 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 1 contract

Samples: Loan Agreement (MGM Growth Properties Operating Partnership LP)

Restoration. (a) Trustor and/or Operating Lessee as applicable shall give prompt written notice of any casualty to the Property which would cost more than $500,000.00 to repair to Beneficiary whether or not required to be insured against. The ~~following provisions~~ notice shall ~~apply~~ describe the nature and cause of the casualty and the extent of the damage to the Property. Trustor and/or Operating Lessee as applicable covenants and agrees to commence and diligently pursue to completion the Restoration. (b) Trustor assigns to Beneficiary all Insurance Proceeds which Trustor and/or Operating Lessee as applicable is entitled to receive in connection with a casualty whether or not such insurance is required under this Deed of Trust. Except as and to the ~~Restoration~~ extent provided in Section 7.4, in the event of any damage to or destruction of the Property: , and provided (a1) ~~Subject~~ an Event of Default does not currently exist, and (2) Beneficiary has determined that (i) there has not been an Impairment of the Security (as defined in Section 7.2 (c)), and (ii) the repair, restoration and rebuilding of any portion of the Property that has been partially damaged or destroyed (the “Restoration”) can be accomplished in full compliance with all Requirements to ~~Section 7.4(c) hereof~~the same condition, if character and general utility as nearly as possible to that existing prior to the casualty and at least equal in value as that existing prior to the casualty, the Net Insurance Proceeds shall be ~~less than~~ applied to the ~~Restoration Threshold and the costs~~ Cost of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) Subject to Section 7.4(c) hereof~~Article. Beneficiary shall hold and disburse the Insurance Proceeds less the cost, if any, to Beneficiary of recovering the ~~Net~~ Insurance Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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~~ attorneys’ fees and ~~disbursements~~ expenses, and adjusters’ fees (the ~~Casualty Consultant’s fees, shall be paid by Borrower. Borrower shall have~~ “Net Insurance Proceeds”) to 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 Restoration. (c) For the ~~insurer with respect to the Policy under which such claim is brought has not raised any act~~ purpose of this Article, “Impairment 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~~ Security” shall mean any 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~~ all of the ~~Net Proceeds in excess of an amount equal to~~ following: (i) the ~~costs actually incurred from time to time for work in place as part~~ casualty or damage occurs during the last year 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(bLoan; or (ii) ~~and that all approvals necessary for the re-occupancy and use~~ restoration of the Property ~~have been obtained~~ is estimated to require more than one year to complete from ~~all appropriate governmental and quasi-governmental authorities, and Lender receives evidence satisfactory to Lender that~~ the ~~costs~~ date of the ~~Restoration have been paid~~ occurrence; or (iii) the occurrence of a Material Casualty (as defined in ~~full~~ 7.4(b)) or ~~will be paid~~ a Material Condemnation (as defined 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 materialmanSection 7.4(b)).

Appears in 1 contract

Samples: Deed of Trust, Security Agreement and Fixture Filing (Strategic Hotels & Resorts, Inc)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c~~If any Net Award is in excess of the Threshold Amount, Landlord (or Lender if required by any Mortgage) ~~hereof, if~~ shall hold the entire Net ~~Proceeds shall be less than~~ Award in a fund (the "Restoration Fund") and disburse amounts from the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund only in accordance with the ~~terms~~ following conditions: (i) prior to commencement of restoration, (A) the architects, contracts, contactors, plans and specifications and a budget for the restoration shall have been approved by Landlord, and (B) Tenant shall cause the applicable contractors to provide Landlord and Lender with mechanics' lien insurance (if available at commercially reasonable rates) and acceptable performance and payment bonds which insure satisfactory completion of and payment for the restoration, are in an amount and form and have a surety reasonably acceptable to Landlord, and name Landlord and Lender as additional dual obligees; (ii) at the time of any disbursement, no Event of Default shall exist and no mechanics' or materialmen's liens shall have been filed against any of the Leased Premises in connection with such restoration which remain undischarged (other than liens removed of record by bond or otherwise); (iii) disbursements shall be made from time to time in an amount not exceeding the cost of the Work completed since the last disbursement, upon receipt of (A) satisfactory evidence, including architects' certificates, of the stage of completion, the estimated total cost of completion and performance of the Work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (C) contractors' and subcontractors' sworn statements as to completed Work and the cost thereof for which payment is requested, (D) a satisfactory bringdown of title insurance and (E) such other reasonable evidence of cost and payment so that Landlord can verify that the amounts disbursed from time to time are represented by Work that is completed, in place and free and clear of mechanics' and materialmen's lien claims; (iv) each request for disbursement shall be accompanied by a certificate of Tenant, signed by the president or a vice president of Tenant, describing the Work for which payment is requested, stating the cost incurred in connection therewith, stating that Tenant has not previously received payment for such Work and, upon completion of the Work, also stating that the Work has been fully completed and complies with the applicable requirements of this ~~Agreement~~Lease; (v) Landlord may retain 10% of the restoration fund until the Work is 50% completed; five 5% of the restoration fund until the Work is substantially completed and, thereafter, 125 % of the estimated cost of completion of punch-list items; (vi) if the Restoration Fund is held by Landlord, the Restoration Fund shall not be commingled with Landlord's other funds and shall bear interest at a rate agreed to by Landlord and Tenant; and (vii) such other reasonable conditions as Landlord or Lender may impose consistent with prudent institutional construction lending practices. (b) ~~Subject~~ Prior to ~~Section 7.4(c) hereof~~commencement of restoration and at any time during restoration, if the ~~Net Proceeds are equal to or greater than the Restoration Threshold or the costs~~ estimated cost of completing the ~~Restoration are equal~~ restoration Work free and clear of all liens, as determined by Landlord, exceeds the amount of the Net Award available for such restoration, the amount of such excess shall, upon demand by Landlord, be paid by Tenant to ~~or greater than~~ Landlord to be added to the Restoration ~~Threshold, Lender shall make the Net Proceeds available for~~ Fund. Any sum so added by Tenant which remains in the Restoration ~~in accordance with the provisions~~ Fund upon completion of ~~this Section 7.4. (i) The Net Proceeds~~ restoration shall be ~~made available for Restoration provided that each~~ refunded to Tenant. For purposes of determining the ~~following conditions are met: (A) no Event~~ source 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 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access funds with respect to the ~~Property; (C) Leases demising in the aggregate a percentage amount equal to or greater than 75%~~ disposition 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 funds remaining after the completion of restoration, the ~~Restoration, notwithstanding~~ Net Award shall be deemed to be disbursed prior to any amount added by Tenant. (c) If any sum remains in 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 Restoration Fund 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) Work and ~~shall diligently pursue the same~~ any refund 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) 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 Major Leases, (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 Tenant 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 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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(bParagraph 19(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, sum 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 CasualtyTenant. (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 1 contract

Samples: Lease Agreement (Corporate Property Associates 16 Global Inc)

Restoration. ~~The~~ Prior to Completion of the Improvements, disbursements of the Net Proceeds to Borrower hereunder shall be made from time to time as if such Net Proceeds constituted unadvanced Loan proceeds and shall be subject to all of the conditions precedent thereof set forth in Sections 2.10 through 2.20 hereof mutatis mutandis. If the Casualty occurs following the Completion of the Improvements, the following provisions shall apply in connection with the ~~Restoration of the Property~~Restoration: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~shall be less than the Restoration Threshold~~ and the costs of completing the Restoration shall both be less than the Restoration Threshold, the Net Proceeds will be disbursed by ~~Lender~~ Lxxxxx to Borrower upon receipt, provided that all of the conditions set forth in Section ~~7.4(b)(i~~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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration ~~are~~ is equal to or greater than the Restoration 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 ~~7.4~~6.4. (i) The Net Proceeds shall be made available to Borrower for Restoration ~~provided~~ upon the approval of Lender in its reasonable discretion that ~~each of~~ the following conditions are ~~met~~met or waived in writing by Lxxxxx: (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 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, and Legal Requirements permit the Restoration of the damaged, destroyed or unusable Improvements at the Property to the same configuration and occupancy that existed immediately preceding such Casualty or (2) in the event the Net Proceeds are condemnation proceeds, less than ten percent (10%) of each of (i) the fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 1 contract

Samples: Building Loan Agreement (ACRES Commercial Realty Corp.)

Restoration. ~~The following provisions~~ (a) Except as otherwise set forth in this Agreement (including this Section 12.2(a)), AP shall ~~apply in connection with~~ be obligated to plug and abandon all xxxxx owned, utilized, placed or caused to be placed by AP on the ~~Restoration~~ Property no longer necessary for the Permitted Purposes; to remove from the Property all Improvements and Equipment owned, utilized, placed or caused to be placed by AP which are no longer utilized for the Permitted Purposes; and to the extent caused by AP’s activities on the Property, restore the surface of the Property: , as near as practicable, to the condition existing on the Effective Date of this Agreement (“Restoration Obligations”), all at AP’s sole risk, cost and expense and subject to compliance with Applicable Law(s) and Applicable Procedure(s). Unless doing so would be in violation of Applicable Law(s), AP shall complete the Restoration Obligations within a reasonable time (but no later than eighteen (18) months, subject to extension for Force Majeure or any Suspending Events) following: (a) ~~Subject~~ the date said xxxxx, structures or facilities are no longer necessary for Permitted Purposes; or (b) the date this Agreement has expired, terminated or been released (whichever occurs first) as to ~~Section 7.4(c~~all or a portion of the Property. Notwithstanding anything contained in this Agreement to the contrary, to the extent permitted by Applicable Law(s) ~~hereof~~and Applicable Procedure(s), ~~if the Net Proceeds~~ AP shall be ~~less~~ allowed to abandon in place Improvements and Equipment below the surface of the Property; however, to the extent any Improvements and Equipment (other than well bores) sought to be abandoned in place are located on a portion of the ~~Restoration Threshold~~ Property managed by DWF, then abandonment in place for such Improvements and ~~the costs of completing the Restoration~~ Equipment shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete determined after consultation with ~~due diligence the Restoration~~ DWF in accordance with the ~~terms~~ applicable provisions of ~~this Agreement~~Schedule 1. The failure of AP to timely complete the Restoration Obligations shall subject AP to and make AP liable for any and all costs or expenses of any kind incurred by the State for plugging said xxxxx or removing said structures or facilities, but in no instance shall title to or ownership of said facilities automatically vest in or transfer to the State nor shall said xxxxx, structures or facilities be deemed “improvements” to the Property for purposes of vesting title in same to the State. Notwithstanding anything in the foregoing to the contrary, AP retains the right to perform its Restoration Obligations and such related obligations in accordance with any other Sequestration Protocols. (b) ~~Subject~~ The State recognizes AP’s right to ~~Section 7.4(c) hereof~~draw and remove casing from xxxxx and, ~~if the Net Proceeds are equal~~ further, to ~~or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available~~ remove any structures and facilities no longer utilized for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of Permitted Purposes on the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 1 contract

Samples: Operating Agreement

Restoration. The following provisions shall apply in connection with the Restoration of any Individual Property; provided, however, notwithstanding anything to the ~~Property~~contrary in this Section 8.4, from and after the occurrence of a Casualty or Condemnation where the Net Proceeds or the cost of completing the Restoration is greater than the Restoration Threshold, if (i) the REA or any Major Lease requires Borrower to repair and restore the Property after such Casualty of Condemnation, no default (beyond any applicable notice and/or grace periods) shall have occurred and be continuing under the subject REA or the subject Major Lease(s) and (iii) no Event of Default shall have occurred and be continuing, then Lender shall disburse the Net Proceeds in accordance with the disbursement provisions specified in Section 8.4(b)(ii)-(vii) hereof (without Borrower having to satisfy the conditions specified in Section 8.4(b)(i) hereof) to facilitate Borrower’s compliance therewith: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon ~~receipt, provided that all~~ receipt of ~~the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a~~ Borrower’s written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement. (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration subject to the conditions of and in accordance with the provisions of this Section ~~7.4.~~ 8.4. The term “Net Proceeds” for purposes of this Section 8.4 shall mean: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ the net amount 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~~ all insurance ~~proceeds, less than thirty percent (30%) of each of (i) fair market value of the Property as reasonably determined~~ proceeds received by ~~Lender, and (ii) rentable area of the Property has been damaged, destroyed or rendered unusable~~ Lender as a result of a Casualty (excluding insurance proceeds from rent loss, liability or workers’ compensation coverage), after deduction of its reasonable costs and expenses (2) including, but not limited to, reasonable counsel fees and disbursements), if any, in collecting the ~~event the Net Proceeds are condemnation proceeds~~same (“Insurance Proceeds”), ~~less than ten percent (10%) of each of (i) the fair market value of the Property as reasonably determined by Lender and~~ or (ii) ~~rentable area~~ the net amount of the ~~Property is taken~~Award as a result of a Condemnation, ~~such land is located along~~ after deduction of its reasonable costs and expenses (including, but not limited to, actually incurred reasonable counsel fees), if any, in collecting the ~~perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property;~~ same (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 delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking“Condemnation Proceeds”), whichever the case may be. Notwithstanding the foregoing, ~~shall remain~~ if no Cash Sweep Period is then continuing, any Award in ~~full force and effect during and after~~ connection with the ~~completion~~ GDOT Condemnation (to the extent such Condemnation is consistent with the description of the ~~Restoration, notwithstanding~~ transaction set forth in 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; (Ddefinition thereof) 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~~ disbursed by Lender 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 Borrower upon receipt of Borrower~~; (F) Lender shall be satisfied that the Net Proceeds together~~ ’s written undertaking to expeditiously commence and to complete 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 Major Leases, (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 shall guaranty to Lender the lien-free completion by Borrower of due diligence the Restoration in accordance with the ~~provisions~~ terms of this ~~Subsection 7.4(b); (J) the Property~~ Agreement and ~~the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal Requirements; (K) the Restoration~~ if a Cash Sweep Period is continuing, such Award shall be ~~done and completed in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements; (L) Lender shall be satisfied, in its sole and absolute discretion, that~~ deposited into the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; and (M) Lender shall be satisfied that making the Net Proceeds available for Restoration shall be permitted pursuant Cash Management Account 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 provided in the ~~alternative fully insured to the satisfaction of Lender by the title company issuing the Title Insurance Policy~~Cash Management Agreement. (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 1 contract

Samples: Loan Agreement (Griffin Capital Essential Asset REIT, Inc.)

Restoration. The following provisions shall apply in connection with the Restoration (but, for the avoidance of doubt, not the PR Restoration) of any Individual Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 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 fair market value of the applicable Individual Property as reasonably determined by Lender and (ii) rentable area of the applicable Individual Property is taken, such land is located along the perimeter or periphery of the applicable Individual Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the applicable Individual Property; (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 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 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 ~~thirty~~ one hundred twenty (30120) 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,~~ 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~~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 clause (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) ~~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 ~~Major Leases~~Leases and the Property Documents, (43) such time as may be required under applicable Legal Requirements or (54) 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 shall guaranty to Lender the lien-free completion by Borrower of the Restoration in accordance with the provisions of this Subsection 7.4(b)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~~Requirements and will be in compliance with the related Ground Lease, Property Documents and Condominium Documents; (K) ~~the Restoration shall be done and completed in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements~~intentionally omitted; (L) ~~Lender shall be satisfied~~the Property Documents, Ground Lease, and the Condominium Documents will remain in ~~its sole~~ full force and ~~absolute discretion, that~~ effect during and after the Restoration and a Property Document Event shall not occur as a result of the ~~Property will not be limited or restricted by the terms of the ZLDA~~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~~, such acceptance not to be unreasonably withheld or delayed~~. 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 ~~exists~~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. If 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~~ Section 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~~ Section 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~~ Section 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~~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 1 contract

Samples: Loan Agreement (Retail Value Inc.)

Restoration. ~~The following~~ 10.17.1 Unless the provisions of Clause 10.17.2 apply, any Net Award in respect of any Casualty or the Partial Compulsory Purchase shall ~~apply~~ be collected by the Tenant to reimburse Tenant for its costs incurred in ~~connection with~~ restoring the Premises. Tenant shall be obligated to restore the Premises as close as possible to its value, condition and character immediately prior to such event (assuming the Premises to have been in the condition required by this Lease). 10.17.2 If (i) the Premises are so destroyed or damaged by an Insured Risk such that the insurers are willing to make one or more lump sum payments of insurance proceeds in advance of reinstatement being paid for and completed, or (ii) the proceeds from any Partial Compulsory Purchase are in excess of E500,000, then, the Landlord or Lender may hold the entire Net Award in a fund (the "RESTORATION FUND") and Landlord or Lender shall disburse amounts from the Restoration of the Property: (a) Subject to Section 7.4(c) hereof, if the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund in accordance with the ~~terms of this Agreement.~~following conditions: (bi) ~~Subject~~ prior to ~~Section 7.4(c~~commencement of restoration, (A) ~~hereof~~the architects, if contracts, contractors, plans and specifications and a budget for the ~~Net Proceeds~~ restoration shall have been reviewed with the Landlord, and (B) the Landlord shall be provided with acceptable performance and payment bonds which insure satisfactory completion of and payment for the restoration, are ~~equal~~ in an amount and form and with a surety reasonably acceptable to the Landlord taking into account market standards, and name the Landlord as additional co-beneficiary or ~~greater~~ be assigned to Landlord; (ii) at the time of any payment, no Material Lease Default on the part of the Tenant shall exist and no liens in favour of workmen that have arisen through the conduct of work on the Premises (other than those liens that arise automatically under the ~~Restoration Threshold or~~ Law) shall have been filed against any of the Premises and remain undischarged; (iii) at the time of any payment, the Tenant is not declared bankrupt nor has the application for bankruptcy been rejected with respect to the Tenant due to the lack of funds sufficient for covering the costs of ~~completing~~ the ~~Restoration are equal~~ bankruptcy proceeding; (iv) payments shall be made from time to ~~or greater than~~ time in an amount not exceeding the ~~Restoration Threshold~~cost of the work completed since the last disbursement, ~~Lender shall make~~ upon receipt of (A) architects' certificates showing the ~~Net Proceeds available for~~ stage of completion and the ~~Restoration~~ estimated total cost of completion) that the work to date has been performed in a good and workmanlike manner in accordance with the ~~provisions~~ contracts, plans and specifications, (B) contractors' and subcontractors' statements as to completed work and the cost thereof for which payment is requested, and (C) paid receipts so that the Landlord and Landlord's construction consultant can verify in their reasonable discretion that the amounts disbursed from time to time are represented by work that is completed, in place and free from any material technical defects and clear from any third party claims. Landlord shall cause its construction consultant to provide such a verification (or objection) within ten (10) Working Days of the date all documentation required to be delivered to Landlord and its construction consultant under this ~~Section 7.4~~clause (iv) being delivered and no such objection may be based upon compliance by Tenant with the documentation approved by Landlord pursuant to Clause 10.17.2(i). (iv) ~~The Net Proceeds~~ each request for payment shall be ~~made available for Restoration provided that each~~ accompanied by a certificate from the Tenant, signed by an authorised representative of the ~~following conditions are met: (A) no Event~~ Tenant, describing the work for which payment is requested, stating the cost incurred in connection therewith, and stating that the Tenant has not previously received payment for such work and, upon completion of ~~Default shall have occurred~~ the work, also stating that the work has been fully completed and ~~be continuing~~complies with the applicable requirements of this Lease; (Bvi) the Landlord shall not unreasonably withhold or delay any payment under this Clause 10.17.2 or the granting or withholding of any consents or approvals with respect to the reinstatement; and (1vii) 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 Landlord may retain ten percent (10%) of ~~each~~ the Net Award until the work is fully completed. So long as no Event of ~~(i)~~ Default then exists, any amounts so retained shall be paid to Tenant or the ~~fair market value of the Property~~ general contractor, as ~~reasonably determined by Lender and (ii) rentable area of the Property is taken~~applicable, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 following final 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 restoration work in compliance with this Lease and receipt by Landlord of all ~~applicable Legal Requirements~~documentation Landlord reasonably requires to verify same. 10.17.3 In the event Landlord's construction consultant objects as provided in Clause 10.17.2 (iv)(C) and Tenant disagrees with such determination by giving Landlord and Landlord's construction consultant written notice of such disagreement within three (3) Working Days of being notified in writing of such objection, ~~including~~then, a representative of Tenant, a representative of Landlord and Landlord's construction consultant shall meet (in person and/or by telephone) within seven (7) Working Days of Tenant notifying Landlord in writing of its disagreement with the objection by Landlord's construction consultant (the "MEETING"). If the parties are unable to resolve such disagreement within three (3) Working Days following the Meeting, then, Landlord and Tenant will attempt to agree upon the appointment of an independent construction consultant of good reputation and with not less than ten (10) years experience monitoring similar projects to resolve such dispute. If such independent construction consultant comes to a different conclusion than Landlord's construction consultant, the determination of such independent construction consultant shall supersede and replace the determination of Landlord's construction consultant. If, however, Landlord and Tenant are unable to agree upon such an independent construction consultant within fifteen (15) Working Days of the Meeting or the independent construction consultant does not make a determination without ~~limitation~~undue delay and at the latest within twenty (20) Working Days of its appointment, ~~all applicable Environmental Laws;~~ then, either Landlord or Tenant may refer such matter to the President of the local Chamber of Commerce and Industry (EIndustrie-und Handelskammer) ~~Lender shall be satisfied that any operating deficits which will be incurred~~ locally competent for the Premises to select an independent construction consultant. All out-of-pocket costs and fees with respect to the ~~Property as a result~~ procedure described in this Clause 10.17.3, including the fees and costs of the ~~occurrence~~ independent construction consultant and/or the President of the local Chamber of Commerce and Industry (Industrie-und Handelskammer) locally competent for the Premises shall be paid by Tenant. The determination made by the independent construction consultant shall be deemed to be an arbitrator's expert opinion (Schiedsgutachten) and no recourse to legal action to appeal such determination shall be permitted. 10.17.4 Prior to commencement of restoration and at any ~~such fire or other casualty or taking will be covered out~~ time during restoration, if the estimated cost of ~~(1)~~ completing the restoration work free and clear of all liens, as determined by the Landlord and the Tenant, exceeds the amount of the Net ~~Proceeds~~Award or insurance proceeds available for such restoration, ~~(2)~~ the ~~insurance coverage referred~~ amount of such excess shall, upon demand by the Landlord, be paid by the Tenant to ~~in Section 7.1(a)(iii) above,~~ the Landlord or ~~(3)~~ directly applied 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~~ Tenant 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 Documentsrestoration. 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 Landlord shall have the right to ~~settle all claims under~~ inspect the ~~Policies jointly with Lender, provided that (a) no Event~~ application of ~~Default exists, (b) Borrower promptly and with commercially reasonable diligence negotiates a settlement of any such claims and (c)~~ funds raised by the ~~insurer with respect to~~ Tenant for the ~~Policy under which such claim is brought has not raised any act~~ restoration 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 CasualtyPremises. ~~(iv) In no event~~ 10.17.5 Any such sums held under Clause 10.17.2 shall ~~Lender~~ be ~~obligated to make disbursements~~ kept in an account separate from any other funds of the ~~Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as~~ Landlord and all interest earned thereon shall form 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 materialmanFund.

Appears in 1 contract

Samples: Lease Agreement (Corporate Property Associates 17 - Global INC)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c~~Landlord (or Lender if required by any Mortgage) ~~hereof, if~~ shall hold any Net Award in excess of $250,000 in a fund (the ~~Net Proceeds shall be less than~~ “Restoration Fund”) and disburse amounts from the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund only in accordance with the terms of this Agreement. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.following conditions: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ prior to commencement of ~~the following conditions are met:~~ restoration, (A) the architects, contracts, contractors, plans and specifications for the restoration shall have been approved by Landlord, (B) unless the total net worth of the Guarantor is greater than One Hundred million ($100,000,000) Dollars, Landlord and Lender shall be provided with mechanics’ lien insurance (if available) and acceptable performance and payment bonds which insure satisfactory completion of and payment for the restoration, are in an amount and form and have a surety acceptable to Landlord, and name Landlord and Lender as additional dual obligees, and (C) if available under State law, appropriate waivers of mechanics’ and materialmen’s liens shall have been filed; (ii) at the time of any disbursement, no Event of Default shall exist and no mechanics’ or materialmen’s liens shall have ~~occurred~~ been filed against any of the Leased Premises and ~~be continuing~~remain undischarged; (iii) disbursements shall be made from time to time in an amount not exceeding the cost of the work completed since the last disbursement, upon receipt of (A) satisfactory evidence, including architects’ certificates, of the stage of completion, the estimated total cost of completion and performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (1C) contractors’ and subcontractors’ sworn statements as to completed work and the cost thereof for which payment is requested, (D) a satisfactory bringdown of title insurance and (E) other evidence of cost and payment so that Landlord and Lender can verify that the amounts disbursed from time to time are represented by work that is completed, in place and free and clear of mechanics’ and materialmen’s lien claims; (iv) each request for disbursement shall be accompanied by a certificate of Tenant, signed by an officer of Tenant, describing the ~~event~~ work for which payment is requested, stating the ~~Net Proceeds are insurance proceeds~~cost incurred in connection therewith, ~~less than thirty percent (30%) of each of (i) fair market value~~ stating that Tenant has not previously received payment for such work and, upon completion of the ~~Property as reasonably determined by Lender~~work, ~~and (ii) rentable area of~~ also stating that the ~~Property~~ work has been ~~damaged, destroyed or rendered unusable as a result~~ fully completed and complies with the applicable requirements of ~~a Casualty or~~ this Lease; (2v) ~~in the event the Net Proceeds are condemnation proceeds, less than~~ Landlord may retain ten percent (10%) of each of advance until the restoration is fifty (i50%) the fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Propertypercent completed; (Cvi) ~~Leases demising~~ the Restoration Fund shall not be commingled with Landlord’s other funds and shall bear interest at a rate agreed to by Landlord and Tenant; and (vii) such other reasonable conditions as Landlord or Lender may impose. (b) Prior to commencement of restoration and at any time during restoration, if the estimated cost of completing the restoration work free and clear of all liens, as determined by Landlord, exceeds the amount of the Net Award available for such restoration, the amount of such excess shall, upon demand by Landlord, be paid by Tenant to Landlord to be added to the Restoration Fund. Any sum so added by Tenant which remains in the ~~aggregate a percentage amount equal~~ Restoration Fund upon completion of restoration shall be refunded to ~~or greater than 75%~~ Tenant. For purposes of determining the ~~total rentable space in~~ source of funds with respect to the ~~Property which has been demised under executed and delivered Leases in effect as~~ disposition 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~~ funds remaining after the completion of restoration, the ~~Restoration, notwithstanding~~ Net Award shall be deemed to be disbursed prior to any amount added by Tenant. (c) If any sum remains in 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 Restoration Fund 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) restoration and ~~shall diligently pursue the same~~ any refund to ~~satisfactory completion in compliance with all applicable Legal Requirements~~Tenant pursuant to Paragraph 19(b), ~~including, without limitation, all applicable Environmental Laws; (E) Lender~~ such sum shall be ~~satisfied that any operating deficits which will be incurred with respect to the Property as~~ retained by Landlord or, if required by a ~~result of the occurrence of any such fire~~ Note or ~~other casualty or taking will be covered out of (1) the Net Proceeds~~Mortgage, (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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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~~ Landlord to ~~settle all claims under the Policies jointly with~~ a 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 1 contract

Samples: Sublease (American Bank Note Holographics Inc)

Restoration. The following provisions shall apply in connection with the Restoration of the Property: (a) Subject to Section 7.4(c) hereof, if the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender If there is a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 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 partial Condemnation of a ~~Casualty or (2) in the event the Net Proceeds are condemnation proceeds, less than ten percent (10%) of each of (i) the fair market value of the Property as reasonably determined by Lender~~ Facility and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 this Lease remains in full force and effect ~~during and after~~ with respect to such Facility, Landlord shall make available to Tenant the ~~completion~~ portion of the ~~Restoration, notwithstanding~~ Award applicable to restoration of the ~~occurrence of any such Casualty or Condemnation, whichever the case may be~~Leased Property, and ~~Borrower furnishes~~ Tenant shall accomplish all necessary restoration whether or not the amount provided by the Condemnor for restoration is sufficient and, if such restoration is not capable of being completed and such Condemnation results in a material adverse effect on the operations of such Facility, the Base Rent shall be reduced by such amount as may be agreed upon by Landlord and Tenant or, if they are unable 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~~ reach such an agreement within a period of ~~the Restoration;~~ ninety (~~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~~90) days after the ~~issuance~~ occurrence of ~~a building permit with respect thereto) and shall diligently pursue~~ the ~~same to satisfactory completion in compliance with all applicable Legal Requirements~~Condemnation, ~~including, without limitation, all applicable Environmental Laws; (E) Lender~~ then the Base Rent for such Facility shall be ~~satisfied that any operating deficits which will be incurred with respect to~~ proportionately reduced based on the ~~Property as a result~~ relative values 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)~~ property taken 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 condemnation 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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~~ affected Facility remaining subject to the Lease. In the event that Landlord and Tenant are unable to agree on such relative values within such ninety (90) day period, either Landlord or Tenant may request that such relative values be determined by Experts in accordance with ~~respect~~ Section 34.1. Tenant shall restore such Leased Property (as nearly as possible under the circumstances) to ~~any contractor, subcontractor or materialman engaged in~~ a complete architectural unit of the ~~Restoration~~ same general character and condition as such Leased Property existing immediately prior to such Condemnation. If Tenant has not so restored the affected Leased Property and the Primary Intended Use has not recommenced by the date that is the fourth (4th) anniversary of the date ~~upon~~ on which Tenant can reasonably access such Facility for the ~~Casualty Consultant certifies~~ purpose of commencing restoration, any remaining Award shall be paid 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,~~ retained by Landlord free 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 clear of any ~~such portion of~~ claim by or through Tenant unless Tenant is continuing to prosecute the ~~Restoration Retainage shall be approved by the surety company, if any, which has issued a payment~~ rebuilding or ~~performance bond~~ restoration with ~~respect to the contractor, subcontractor or materialman~~reasonable diligence.

Appears in 1 contract

Samples: Master Lease (MGM Growth Properties Operating Partnership LP)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold Premises or the ~~costs of completing~~ Building or a part thereof are materially damaged by any fire, flood, earthquake or other casualty, Landlord shall have the ~~Restoration are equal~~ right to ~~or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of~~ terminate this ~~Section 7.4.~~ Lease upon written notice to Tenant if: (i) ~~The Net Proceeds~~ Landlord reasonably determines that the full cost of repair (exclusive of any deductible up to seven and one-half percent of the loss amount) is not covered by Landlord's insurance that Landlord is required to maintain by this Lease which Landlord carries and includes as part of Operating Expenses, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be ~~made available~~ responsible for ~~Restoration provided~~ Tenant's Share as an Operating Expense); (ii) Landlord reasonably determines that ~~each~~ the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the ~~following conditions are met: (A~~presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) ~~no Event of Default shall have occurred and be continuing; (B)~~ within one (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as of year after the date of the ~~occurrence~~ damage; (iii) an uncured Event of Default by Tenant has occurred and remains uncured at the time of such ~~fire~~ casualty; or ~~other casualty or taking, whichever~~ (iv) the ~~case may be, shall remain in full force and effect~~ material damage occurs during ~~and after~~ the ~~completion~~ final twelve (12) months 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 Term. Landlord shall ~~continue to operate their respective space at the Property after the completion of the Restoration;~~ notify Tenant in writing (D"LANDLORD'S NOTICE") ~~Borrower shall commence (or shall cause the commencement of) the Restoration as soon as reasonably practicable (but in no event later than~~ within thirty (30) days after the ~~issuance of a building permit with respect thereto~~damage occurs as to (A) 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 whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the ~~occurrence~~ number of ~~any~~ days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date of Landlord's Notice. Notwithstanding the foregoing, Landlord shall only have the right to terminate this Lease under (i) above if Landlord terminates the leases of all tenants in the Project similarly damaged by such ~~fire or other~~ casualty ~~or taking will be covered out~~ and such tenants have comparable rights and obligations in the event 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;~~such casualty. (Fb) ~~Lender shall be satisfied~~ If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord's Notice no uncured Event of Default exists under this Lease, then within fifteen (15) business days following delivery of Landlord's Notice pursuant to *** Confidential treatment has been requested for the redacted text of this document. The confidential redacted text has been omitted and filed separately with the Securities and Exchange Commission. Section 11.1 (a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord's Notice specifies that Landlord has determined 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 Premises cannot 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;~~ repaired, with reasonable diligence, within twelve (~~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~~12) months after the ~~occurrence~~ date of ~~such fire~~ damage (the "MAXIMUM PERIOD") or ~~other casualty or taking,~~ (3ii) the ~~earliest date required for such completion under~~ casualty has occurred within the ~~terms of any Major Leases,~~ final twelve (412) ~~such time as may be required under applicable Legal Requirements or (5) the expiration~~ months of the ~~insurance coverage referred~~ Term and Tenant is prevented from using the Premises for sixty (60) consecutive days due to ~~in Section 7.1(a)(iii~~such damage. If Tenant fails to provide such termination notice within such fifteen (15) 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 shall 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 business day period, Tenant shall be ~~done and completed in an expeditious and diligent fashion and in compliance with all~~ deemed to have waived any termination right under this Section 11.1(b) or any other applicable Legal Requirements; (L) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 therewithlaw. (iic) ~~The Net Proceeds shall be held by Lender and, until disbursed in accordance with~~ In the ~~provisions of~~ event that neither Landlord nor Tenant terminates this Lease pursuant to this Section ~~7.4(b)~~11.1 as a result of material damage to the Building resulting from a casualty, Landlord shall, except as provided in subsection (e) below, repair all material damage to the Premises or the Building as soon as reasonably possible and this Lease shall ~~constitute additional security~~ continue in effect for the ~~Debt and other obligations under this Agreement~~remainder of the Term. Notwithstanding the foregoing, the ~~Security Instrument,~~ repair of damage to 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 Premises 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 such damage is 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 material shall be ~~subject to prior review~~ governed by Sections 7.1 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 Casualty7. (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 1 contract

Samples: Lease Agreement (Broadcom Corp)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the Property~~any Property affected by a Casualty: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~shall~~ reasonably expected to be received in connection with any single Casualty event is less than the ~~Restoration~~ Casualty Threshold Amount, then, (i) if no Event of Default shall have occurred and ~~the costs of completing the Restoration shall~~ be ~~less than the Restoration Threshold~~continuing and, ~~the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all~~ within sixty (60) days of the ~~conditions set forth in Section 7.4(b)(i) are met and~~ date of the occurrence of such Casualty, Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration of the affected Properties in accordance with the terms of this Agreement, then (A) if Net Proceeds are paid by the insurance company directly to Borrower subsequent to delivering such undertaking, such Net Proceeds may be retained by Borrower (for the avoidance of doubt, Net Proceeds received by Borrower prior to delivering such undertaking shall be immediately paid to Lender as required by Section 5.2), (B) if Net Proceeds are paid by the insurance company to Lender, such Net Proceeds will be disbursed by Lender to Borrower and (C) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of Section 5.4(c) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall be applied to the prepayment of the Debt in an amount equal to the Release Amount for such Property in accordance with Section 2.4.2(c), (D) Borrower shall prepay the Loan in an amount equal to the excess, if any, of the Release Amount for such Property over such Net Proceeds, and (E) promptly following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, if any, Lender shall (x) release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (A) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (B) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (y) disburse to Borrower (A) in the case of a substitution of a Substitute Property for such Property, the Net Proceeds paid by the insurance company and (B) in the case of the payment of the Release Amount for such Property, the Net Proceeds paid by the insurance company in excess of the Release Amount for such Property; provided that, during the continuance of a Cash Sweep Period, the applicable Net Proceeds shall instead be delivered to the Cash Collateral Subaccount and disbursed in accordance with Section 6.6.3. (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~are equal~~ reasonably expected to or be received in connection with any single Casualty event is greater than the ~~Restoration~~ Casualty Threshold ~~or the costs of completing the Restoration are equal to or greater than the Restoration Threshold~~Amount, ~~Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.~~ then, (i) ~~The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A)~~ if no Event of Default shall have occurred and be ~~continuing;~~ continuing and, within sixty (B60) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as days of the date of the occurrence of such ~~fire or other casualty or taking~~Casualty, ~~whichever~~ Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the ~~case may be, shall remain in full force and effect during and after the completion~~ Restoration of the ~~Restoration~~affected Properties in accordance with the terms of this Agreement, ~~notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and~~ then (A) Borrower ~~furnishes~~ shall immediately deliver to Lender ~~evidence satisfactory~~ any Net Proceeds paid to Borrower as required by Section 5.2 and (B) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of and subject to the conditions of Section 5.4(d) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender ~~that all Tenants under Major Leases~~ any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall ~~continue~~ be applied to ~~operate their respective space at~~ the ~~Property after the completion~~ prepayment of the ~~Restoration;~~ Debt in an amount equal to the Release Amount for such Property in accordance with Section 2.4.2(c), (D) Borrower shall prepay the Loan in an amount equal to the excess, if any, of the Release Amount for the affected Properties over such Net Proceeds, and (E) promptly following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, if any, Lender shall (x) release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (A) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (B) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (y) disburse to Borrower (A) in the case of a substitution of a Substitute Property for such Property, the Net Proceeds paid by the insurance company and (B) in the case of the payment of the Release Amount for such Property, the Net Proceeds paid by the insurance company in excess of the Release Amount for such Property; provided that, during the continuance of a Cash Sweep Period, the applicable Net Proceeds shall instead be delivered to the Cash Collateral Subaccount and disbursed in accordance with Section 6.6.3. (c) If Borrower elects to undertake the Restoration a Property or Properties pursuant to Section 5.4(a), (i) Borrower shall commence ~~(or shall cause the commencement of)~~ the Restoration as soon as reasonably practicable (but in no event later than ~~thirty~~ ninety (3090) days after ~~the issuance of a building permit with respect thereto~~such Casualty occurs) and shall diligently pursue the same to satisfactory ~~completion~~ completion; (ii) Borrower shall cause the affected Property and the use thereof after the Restoration to be in compliance with and permitted under all applicable Legal Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (iii) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal ~~Requirements~~Requirements and the Renovation Standards and (iv) Borrower shall deliver, ~~including~~or cause to be delivered, ~~without limitation~~to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, ~~all applicable Environmental Laws;~~which budget shall be reasonably acceptable to Lender. (Ed) If Borrower elects to undertake the Restoration of a Property or Properties pursuant to Section 5.4(b), the following provisions shall apply: (i) the Net Proceeds shall be made available to Borrower for Restoration upon the determination of Lender that the following conditions are met: (A) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than ninety (90) days after such Casualty occurs) and shall diligently pursue the same to satisfactory completion; (B) Lender shall be satisfied that any operating ~~deficits~~ deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the ~~Property~~ Properties as a result of the occurrence of ~~any such fire or other casualty or taking~~ the Casualty, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section ~~7.1(a)(iii) above~~5.1.1(a)(ii), if applicable, 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; (HC) 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 Initial Maturity Date, as extended pursuant to Section 2.8, (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 ~~Major Leases~~Lease, (43) such time as may be required under applicable Legal Requirements or (54) six (6) months prior to the expiration of the insurance coverage referred to in Section ~~7.1(a)(iii) above;~~ 5.1.1(a)(ii); (ID) Borrower shall ~~execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender and its counsel pursuant to~~ cause 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 7.4(b); (J) the~~ affected Property and the use thereof after the Restoration ~~will~~ to be in compliance with and permitted under all applicable Legal ~~Requirements;~~ Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (KE) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal ~~Requirements;~~ Requirements and the Renovation Standards; (LF) 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 ~~satisfied, in its sole~~ reasonably acceptable to Lender and ~~absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; and~~ (MG) ~~Lender shall be satisfied that making~~ the Net Proceeds ~~available for Restoration shall be permitted pursuant~~ together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to ~~REMIC Requirements and, in that regard, Lender may require Borrower to deliver a REMIC Opinion in connection therewith~~cover the cost of the Restoration. (ii) The Net Proceeds shall be held by Lender in the Casualty and Condemnation Subaccount and, until disbursed in accordance with the provisions of this Section ~~7.4(b~~5.4(d), 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~~ Properties 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 the prior ~~review and acceptance in all respects by~~ approval of 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~~ Restoration, as well as the contracts under which they have been engaged, shall be subject to ~~prior review and acceptance by~~ the approval of 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~~ recovering, holding and advancing the Net Proceeds ~~available~~ for the Restoration including, without limitation, reasonable ~~counsel~~ attorneys’ fees and disbursements and the Casualty Consultant’s ~~fees~~fees and disbursements, 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~~ less the ~~Restoration~~ Casualty Retainage. The term “~~Restoration~~ Casualty Retainage” shall mean, as ~~used~~ to each contractor, subcontractor or materialman engaged in ~~this Subsection 7.4(b) shall mean~~ 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 ~~such time as~~ the ~~Casualty Consultant certifies to Lender that Net Proceeds representing 50% of the required~~ Restoration ~~have~~ has 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~~completed. The ~~Restoration~~ Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this ~~Subsection 7.4(b~~Section 5.4(d), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The ~~Restoration~~ 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 7.4(b~~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 and quasi-governmental authorities~~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~~ Casualty Retainage, ; provided, however, that Lender will release the portion of the ~~Restoration~~ Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which (x) the Casualty Consultant certifies to Lender that ~~the~~ such contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of ~~the~~ such contractor’s, subcontractor’s or materialman’s contract, ~~and~~ (y) 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 (z) Lender receives an endorsement to the Title Insurance Policy insuring the ~~lien~~ continued priority of the ~~Security Instrument~~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 ~~Restoration~~ 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: Loan Agreement (Colony Starwood Homes)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject~~ If the Premises or the Building or a part thereof are materially damaged by any fire, flood, earthquake or other casualty, Landlord shall have the right to ~~Section 7.4(c~~terminate this Lease upon written notice to Tenant if: (i) ~~hereof~~Landlord reasonably determines that proceeds necessary to pay the full cost of repair are not available from Landlord’s insurance, if including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the ~~Net Proceeds~~ deductible (for which Tenant shall be ~~less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt~~responsible for Tenant’s Share, provided that ~~all~~ in no event shall Tenant’s Share of a deductible be greater than Fifty Thousand Dollars ($50,000) for any single casualty [the “Deductible Cap” herein]); (ii) Landlord reasonably determines that the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the ~~conditions set forth~~ presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; (iii) an Event of Default by Tenant has occurred; or (iv) the material damage occurs during the final twelve (12) months of the Term. Landlord shall notify Tenant in ~~Section 7.4(b)(i~~writing (“Landlord’s Notice”) within sixty (60) days after the damage occurs as to (A) whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the number of days within which Landlord estimates that the Premises, with reasonable diligence, are ~~met and Borrower delivers~~ likely to ~~Lender a written undertaking~~ be fully repaired. In the event Landlord elects to ~~expeditiously commence and to satisfactorily complete with due diligence~~ terminate this Lease, this Lease shall terminate thirty (30) days following the ~~Restoration in accordance with the terms~~ date of ~~this Agreement~~delivery of Landlord’s Notice. (b) ~~Subject~~ If Landlord has the right to terminate this Lease pursuant to Section ~~7.4(c~~11.1(a) ~~hereof~~and does not elect to so terminate this Lease, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available for Restoration and provided that ~~each~~ at the time of ~~the following conditions are met: (A) no~~ Landlord’s Notice neither an 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 each of (i) fair market value of the Property as reasonably determined by Lender, and (ii) rentable area of the Property exists nor has ~~been damaged, destroyed or rendered unusable as~~ Landlord delivered to Tenant 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 notice of any ~~such Casualty or Condemnation~~failure by Tenant to fulfill an obligation under this Lease which, ~~whichever~~ unless cured by Tenant within the ~~case may be~~applicable grace period, ~~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~~ would constitute an Event 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~~ Default, then within thirty (30) days following delivery of Landlord’s Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord’s Notice specifies that Landlord has determined that the Premises cannot be repaired, with reasonable diligence, within two hundred seventy (270) days after the ~~issuance~~ date of damage or (ii) the casualty has occurred within the final twelve (12) months of the Term and such material damage has a ~~building permit with respect thereto~~materially adverse impact on Tenant’s continued use of the Premises. If Tenant fails to provide such termination notice within such thirty (30) ~~and~~ day period, Tenant shall ~~diligently pursue the same~~ be deemed to ~~satisfactory completion in compliance with all~~ have waived any termination right under this Section 11.1(b) or any other applicable ~~Legal Requirements, including, without limitation, all applicable Environmental Laws;~~law. (Ec) ~~Lender shall be satisfied~~ In the event that ~~any operating deficits which will be incurred with respect~~ neither Landlord nor Tenant terminates this Lease pursuant to ~~the Property~~ this Section 11.1 as a result of material damage to the ~~occurrence~~ Building or Premises resulting from a casualty, Landlord shall diligently repair all material damage to the Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Subject to any provision to the contrary in the Work Letter, such ~~fire~~ repair by Landlord shall include repair of material damage to the Tenant Improvements constructed pursuant to the Work Letter. Landlord’s repair of material damage shall be at Landlord’s sole cost and expense except for any insurance deductible (for which Tenant shall be responsible for Tenant’s Share not to exceed, however, the Deductible Cap). Landlord shall have the right, but not the obligation, to repair or replace any other leasehold improvements made by Tenant or any Alterations (as defined in Section 7.3) constructed by Tenant as part of Landlord’s repair of material damage, in which case Tenant shall make available to Landlord upon demand insurance proceeds from insurance required to be maintained by Tenant. If Landlord elects to repair or replace such leasehold improvements and/or Alterations, all insurance proceeds available for such repair or replacement shall be made available to Landlord. Landlord shall have no liability to Tenant in the event that the Premises or the Building has not been fully repaired within the time period specified by Landlord in Landlord’s Notice to Tenant as described in Section 11.1(a). Notwithstanding anything to the contrary contained in this Section 11.1(c), if for any reasons other than delays caused by Tenant, or other ~~casualty or taking will be covered out of~~ matters beyond Landlord’s reasonable control, the Premises and/or the Building have not been substantially repaired within thirty (130) days following the ~~Net Proceeds, (2) the insurance coverage referred~~ time period specified in Landlord’s Notice to Tenant as described in Section ~~7.1(a)(iii) above~~11.1(a), ~~or (3)~~ then Tenant may, by ~~other funds of Borrower; (F) Lender shall be satisfied that~~ written notice to Landlord given at any time thereafter but prior to the ~~Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient to cover the cost~~ actual date of the ~~Restoration; (G) Lender shall be satisfied that, upon the~~ substantial completion of the ~~Restoration, the fair market value and cash flow~~ repair of the ~~Property will not be less than~~ Premises or the ~~fair market value~~ Building, elect to terminate this Lease effective thirty (30) days from and ~~cash flow~~ after the date of ~~the Property as the same existed immediately prior to the applicable Casualty or Condemnation; (H) Lender~~ such notice; provided that if Landlord shall ~~be satisfied that the Restoration will be completed~~ substantially complete such repairs on or before the ~~earliest to occur of (1) six (6) months prior to the Maturity Date, (2) six (6) months after the occurrence~~ effective date of such ~~fire~~ termination, then Tenant’s election to terminate this Lease shall thereupon be cancelled and of no further force or effect. Notwithstanding the foregoing, if at any time during the construction period, Landlord reasonably determines that the substantial completion of said repairs will be delayed beyond the time period specified in Landlord’s Notice (for reasons other ~~casualty or taking~~than Tenant-caused delays and/or force majeure delays), ~~(3) the earliest~~ then Landlord may notify Tenant in writing of such determination and of a new outside date ~~required~~ for completion of such ~~completion under the terms of any Major Leases~~repairs, ~~(4) such time as may be required under applicable Legal Requirements or~~ and Tenant must elect within five (5) days of receipt of such notice to either terminate this Lease or waive its right to terminate this Lease, provided such repairs are substantially completed within thirty (30) days following the ~~expiration~~ new outside date established by Landlord in such notice to Tenant. Tenant’s failure to elect to terminate this Lease within such five (5) day period shall be deemed Tenant’s waiver of its right to terminate this Lease as provided in this paragraph as to the previous outside date, but not as to the new outside date established by said notice. (d) Commencing on the date of such material damage to the Building, and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the Floor Area of the Premises that is rendered unusable by the damage from time to time bears to the total Floor Area of the Premises, as determined by Landlord, but only to the extent that Landlord is entitled to reimbursement from the proceeds of the business interruption insurance ~~coverage referred~~ required to ~~in Section 7.1(a)(iii) above;~~be maintained by Tenant pursuant to Exhibit D. (Ie) ~~Borrower shall execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender and its counsel pursuant~~ Subject to the provisions of ~~which Borrower~~ Section 10.5, in the event the damage or destruction to the Premises or Building are due in substantial part to the fault or neglect of Tenant or its employees, subtenants, invitees or representatives, the costs of such repairs or replacement to the Premises or Building shall ~~guaranty~~ be borne by Tenant, and in addition, Tenant shall not be entitled to ~~Lender the lien-free completion by Borrower of the Restoration in accordance with~~ terminate this Lease as a result, notwithstanding the provisions of ~~this Subsection 7.4(b~~Section 11.1(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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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. (iif) ~~The Net Proceeds~~ Tenant shall ~~be held by Lender and, until disbursed~~ fully cooperate with Landlord in ~~accordance with~~ removing Tenant’s personal property and any debris from the ~~provisions~~ Premises to facilitate all inspections of ~~this Section 7.4(b), shall constitute additional security for~~ the ~~Debt and other obligations under this Agreement, the Security Instrument, the Note~~ Premises 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 making 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”)repairs. 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 Notwithstanding anything to the contrary ~~set forth above~~ contained in this ~~Subsection 7.4(b)~~Lease, ~~be less than~~ if Landlord in good faith believes there is a risk of injury to persons or damage to property from entry into the ~~amount actually held back~~ Building or Premises following any damage or destruction thereto, Landlord may restrict entry into the Building or the Premises by ~~Borrower from contractors~~Tenant, ~~subcontractors~~ its employees, agents and ~~materialmen engaged~~ contractors in a non-discriminatory manner, without being deemed to have violated Tenant’s rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the ~~Restoration~~Premises. ~~The Restoration Retainage~~ Upon request, Landlord shall ~~not be released until~~ consult with Tenant to determine if there are safe methods of entry into the ~~Casualty Consultant certifies~~ Building or the Premises solely in order to ~~Lender that the Restoration has been completed~~ allow Tenant to retrieve files, data 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 authoritiescomputers, and ~~Lender receives evidence satisfactory~~ necessary inventory, subject however to ~~Lender that the costs~~ all indemnities and waivers of ~~the Restoration have been paid~~ liability from Tenant to Landlord contained in ~~full or will be paid in full out~~ this Lease and any additional indemnities and waivers 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 liability 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 Landlord 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 materialmanrequire.

Appears in 1 contract

Samples: Lease (Sonics, Inc.)

Restoration. The following provisions shall apply in ----------- connection with the Restoration of ~~the~~ any Individual Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ In the event that the projected Net Proceeds ~~shall be less than the Restoration Threshold~~ and the costs of completing the Restoration ~~shall be~~ are each less than the ~~Restoration Threshold~~Threshold Amount, Borrower may settle and adjust any claim without the ~~Net Proceeds will~~ consent of Lender and agree with the insurance company or companies on the amount to be ~~disbursed by Lender to Borrower~~ paid upon ~~receipt,~~ the loss; provided that such adjustment is carried out in a competent and timely manner. Provided that all of the conditions set forth in Subsections (A), (D), (F), (G), (I) and (J) of Section ~~7.4(b)(i~~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 herein, Borrower is hereby authorized to collect and receive any such Insurance Proceeds and apply them to the costs of the Restoration in accordance with the terms of this Agreement. (b) ~~Subject to Section 7.4(c) hereof, if~~ In the event that either the projected Net Proceeds ~~are equal to or greater than the Restoration Threshold~~ or the costs of completing the Restoration are either equal to or ~~greater than~~ exceed the ~~Restoration Threshold~~Threshold Amount Borrower may settle and adjust any claim with the prior consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that (A) if Borrower has not commenced or diligently pursued the claims process with the applicable insurance company or companies and as a result thereof, Lender takes over the claims process as provided in Section 6.2, then Lender may settle and adjust such claims in a reasonable and expeditious manner and (B) upon the occurrence and during the continuance of an Event of Default, Lender may settle and adjust any claim without the consent of Borrower. In such events, Borrower or Lender, as the case may be, may agree with the insurance company or companies on the amount to be paid on the loss. All reasonable efforts will be made to ensure that the proceeds of any such policy shall be paid solely to Lender but, if for any reason Borrower or Wyndham shall also be a dual payee, then Borrower and/or Wyndham, as applicable, shall endorse and/or deliver to Lender all such proceeds within three (3) Business Days following Borrower's and/or Wyndham's, as applicable, receipt thereof, and provided no Event of Default has occurred and is continuing, Lender shall make the Net Proceeds available for the Restoration in accordance with ~~the provisions~~ this Section 6.4. The term "Net Proceeds" for purposes of this Section ~~7.4.~~ 6.4 shall mean: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ the net amount of ~~the following conditions are met:~~ all insurance proceeds received pursuant to Section 6.1 (Aa)(i), (iv), (vi), (vii) 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 each of (i) fair market value of the Property as reasonably determined by Lender, and (iiviii) ~~rentable area of the Property has been damaged, destroyed or rendered unusable~~ as a result of ~~a Casualty~~ such damage or destruction, after deduction of its reasonable costs and expenses (2) including, but not limited to, reasonable counsel fees), if any, in ~~the event the Net Proceeds are condemnation proceeds~~collecting same ("Insurance Proceeds"), ~~less than ten percent (10%) of each of (i) the fair market value of the Property as reasonably determined by Lender and~~ or (ii) ~~rentable area~~ the net amount of the ~~Property is taken~~Award, ~~such land is located along the perimeter or periphery~~ after deduction of ~~the Property~~reasonable costs and expenses (including, ~~no portion of the Improvements is located on such land and such taking does~~ but not ~~materially impair the existing access to the Property;~~ limited to, reasonable counsel fees), if any, in collecting same (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 delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking"Condemnation Proceeds"), whichever the case may be, ~~shall remain~~ plus (in ~~full force~~ the case of (i) and ~~effect during and after~~ (ii) above) any interest or other income earned on the ~~completion~~ investment of the ~~Restoration, notwithstanding the occurrence of any such Casualty~~ Insurance Proceeds 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 Condemnation 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 therewithhereof. (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 1 contract

Samples: Loan Agreement (Wyndham International Inc)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the Property~~any Property or Properties affected by a Casualty: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~shall~~ reasonably expected to be received in connection with any single Casualty event is less than the ~~Restoration~~ Casualty Threshold Amount, then, (i) if no Event of Default shall have occurred and ~~the costs of completing the Restoration shall~~ be ~~less than the Restoration Threshold~~continuing and, ~~the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all~~ within sixty (60) days of the ~~conditions set forth in Section 7.4(b)(i) are met and~~ date of the occurrence of such Casualty, Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration of the affected Properties in accordance with the terms of this Agreement, then (A) if Net Proceeds are paid by the insurance company directly to Borrower subsequent to delivering such undertaking, such Net Proceeds may be retained by Borrower (for the avoidance of doubt, Net Proceeds received by Borrower prior to delivering such undertaking shall be immediately paid to Lender as required by Section 5.2), (B) if Net Proceeds are paid by the insurance company to Lender, such Net Proceeds will be disbursed by Lender to Borrower and (C) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of Section 5.4(c) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall be applied to the prepayment of the Debt in accordance with Section 2.4.3(c), (D) Borrower shall prepay the Loan in an amount equal to the positive difference between such Net Proceeds and the Allocated Loan Amount for the affected Properties, together with all interest and other amounts required to be paid in connection therewith under Section 2.4.5, and (E) following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, Lender shall release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (x) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees). (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~are equal~~ reasonably expected to or be received in connection with any single Casualty event is greater than the ~~Restoration~~ Casualty Threshold ~~or the costs of completing the Restoration are equal to or greater than the Restoration Threshold~~Amount, ~~Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.~~ then, (i) ~~The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A)~~ if no Event of Default shall have occurred and be ~~continuing;~~ continuing and, within sixty (B60) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as days of the date of the occurrence of such ~~fire or other casualty or taking~~Casualty, ~~whichever~~ Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the ~~case may be, shall remain in full force and effect during and after the completion~~ Restoration of the ~~Restoration~~affected Properties in accordance with the terms of this Agreement, ~~notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and~~ then (A) Borrower ~~furnishes~~ shall immediately deliver to Lender ~~evidence satisfactory~~ any Net Proceeds paid to Borrower as required by Section 5.2 and (B) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of and subject to the conditions of Section 5.4(d) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender ~~that all Tenants under Major Leases~~ any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall ~~continue~~ be applied to ~~operate their respective space at~~ the ~~Property after the completion~~ prepayment of the ~~Restoration;~~ Debt in accordance with Section 2.4.3(c), (D) Borrower shall prepay the Loan in an amount equal to the positive difference between such Net Proceeds and the Allocated Loan Amount for the affected Properties, together with all interest and other amounts required to be paid in connection therewith under Section 2.4.5, and (E) following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, Lender shall release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (x) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees). (c) If Borrower elects to undertake the Restoration of a Property or Properties pursuant to Section 5.4(a), (i) Borrower shall commence ~~(or shall cause the commencement of)~~ the Restoration as soon as reasonably practicable (but in no event later than ~~thirty~~ ninety (3090) days after ~~the issuance of a building permit with respect thereto~~such Casualty occurs) and shall diligently pursue the same to satisfactory ~~completion~~ completion; (ii) Borrower shall cause the affected Property and the use thereof after the Restoration to be in compliance with and permitted under all applicable Legal Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (iii) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal ~~Requirements~~Requirements and the Renovation Standards and (iv) Borrower shall deliver, ~~including~~or cause to be delivered, ~~without limitation~~to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, ~~all applicable Environmental Laws;~~which budget shall be reasonably acceptable to Lender. (Ed) If Borrower elects to undertake the Restoration of a Property or Properties pursuant to Section 5.4(b), the following provisions shall apply: (i) the Net Proceeds shall be made available to Borrower for Restoration upon the determination of Lender that the following conditions are met: (i) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than ninety (90) days after such Casualty occurs) and shall diligently pursue the same to satisfactory completion; (ii) Lender shall be satisfied that any operating ~~deficits~~ deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the ~~Property~~ Properties as a result of the occurrence of ~~any such fire or other casualty or taking~~ the Casualty, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section ~~7.1(a)(iii~~5.1.1 (a) ~~above~~(ii), if applicable, 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; (Hiii) 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) 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 Major Leases, (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 extended 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 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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.2.7,

Appears in 1 contract

Samples: Loan Agreement (Invitation Homes Inc.)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the Property~~Properties affected by a Casualty: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~shall~~ reasonably expected to be received in connection with any single Casualty event is less than the ~~Restoration~~ Casualty Threshold Amount, then, (i) if no Event of Default shall have occurred and ~~the costs of completing the Restoration shall~~ be ~~less than the Restoration Threshold~~continuing and, ~~the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all~~ within sixty (60) days of the ~~conditions set forth in Section 7.4(b)(i) are met and~~ date of the occurrence of such Casualty, Borrower delivers to Lender a written undertaking to expeditiously commence and to ~~satisfactorily complete with due diligence~~ diligently pursue to satisfactory completion the Restoration of the affected Properties in accordance with the terms of this Agreement, then (A) if Net Proceeds are paid by the insurance company directly to Borrower subsequent to delivering such undertaking, such Net Proceeds may be retained by Borrower (for the avoidance of doubt, Net Proceeds received by Borrower prior to delivering such undertaking shall be immediately paid to Lender to be held in the Casualty and Condemnation Account as required by Section 5.2), (B) if Net Proceeds are paid by the insurance company to Lender, such Net Proceeds will be disbursed by Lender to Borrower and (C) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of Section 5.4(c) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall be applied to the prepayment of the Debt in accordance with Section 2.4.3(c), (D) Borrower shall prepay the Loan in an amount equal to the positive difference between such Net Proceeds and the Allocated Loan Amount for the affected Properties, together with all interest and other amounts required to be paid in connection therewith under Section 2.4.5, and (E) following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, Lender shall release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (x) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable out-of-pocket attorneys’ fees). (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~are equal~~ reasonably expected to or be received in connection with any single Casualty event is greater than the ~~Restoration~~ Casualty Threshold ~~or the costs of completing the Restoration are equal to or greater than the Restoration Threshold~~Amount, ~~Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.~~ then, (i) ~~The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A)~~ if no Event of Default shall have occurred and be ~~continuing;~~ continuing and, within sixty (B60) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as days of the date of the occurrence of such ~~fire or other casualty or taking~~Casualty, ~~whichever~~ Borrower delivers to Lender a written undertaking to expeditiously commence and to diligently pursue to satisfactory completion the ~~case may be, shall remain in full force and effect during and after the completion~~ Restoration of the ~~Restoration~~affected Properties in accordance with the terms of this Agreement, ~~notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and~~ then (A) Borrower ~~furnishes~~ shall immediately deliver to Lender ~~evidence satisfactory~~ to be held in the Casualty and Condemnation Account any Net Proceeds paid to Borrower as required by Section 5.2 and (B) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of and subject to the conditions of Section 5.4(d) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender ~~that all Tenants under Major Leases~~ any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall ~~continue~~ be applied to ~~operate their respective space at~~ the ~~Property after the completion~~ prepayment of the ~~Restoration;~~ Debt in accordance with Section 2.4.3(c), (D) Borrower shall prepay the Loan in an amount equal to the positive difference between such Net Proceeds and the Allocated Loan Amount for the affected Properties, together with all interest and other amounts required to be paid in connection therewith under Section 2.4.5, and (E) following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, Lender shall release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (x) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees). (c) If Borrower elects to undertake the Restoration of a Property or Properties pursuant to Section 5.4(a), (i) Borrower shall commence ~~(or shall cause the commencement of)~~ the Restoration as soon as reasonably practicable (but in no event later than ~~thirty~~ ninety (3090) days after ~~the issuance of a building permit with respect thereto~~such Casualty occurs) and shall diligently pursue the same to satisfactory ~~completion~~ completion; (ii) Borrower shall cause the affected Property and the use thereof after the Restoration to be in compliance with and permitted under all applicable Legal Requirements and such Property, after Restoration, shall be of the same or better character as prior to such damage or destruction; (iii) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal ~~Requirements~~Requirements and the Renovation Standards and (iv) Borrower shall deliver, ~~including~~or cause to be delivered, ~~without limitation~~to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, ~~all applicable Environmental Laws;~~which budget shall be reasonably acceptable to Lender. (Ed) If Borrower elects to undertake the Restoration of a Property or Properties pursuant to Section 5.4(b), the following provisions shall apply: (i) the Net Proceeds shall be made available to Borrower for Restoration upon the determination of Lender that the following conditions are met: (i) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than ninety (90) days after such Casualty occurs) and shall diligently pursue the same to satisfactory completion; (ii) Lender shall be satisfied that any operating ~~deficits~~ deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the ~~Property~~ Properties as a result of the occurrence of ~~any such fire or other casualty or taking~~ the Casualty, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section ~~7.1(a)(iii~~5.1.1 (a) ~~above~~(ii), if applicable, 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; (Hiii) 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, as extended pursuant to Section 2.7, (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 ~~Major Leases~~Lease, (43) such time as may be required under applicable Legal Requirements or (54) six (6) months prior to the expiration of the insurance coverage referred to in Section ~~7.1(a)(iii) above;~~5.1.1 (Ia) (ii); (iv) Borrower shall ~~execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender and its counsel pursuant to~~ cause 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 7.4(b); (J) the~~ affected Property and the use thereof after the Restoration ~~will~~ to be in compliance with and permitted under all applicable Legal ~~Requirements;~~ Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (Kv) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal ~~Requirements;~~ Requirements and the Renovation Standards; (Lvi) 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 ~~satisfied, in its sole~~ reasonably acceptable to Lender and ~~absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; and~~ (Mvii) ~~Lender shall be satisfied that making~~ the Net Proceeds ~~available for Restoration shall be permitted pursuant~~ together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to ~~REMIC Requirements and, in that regard, Lender may require Borrower to deliver a REMIC Opinion in connection therewith~~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 ~~7.4(b~~5.4(d), 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~~ Properties 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 the prior ~~review and acceptance in all respects by~~ approval of 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~~ Restoration, as well as the contracts under which they have been engaged, shall be subject to ~~prior review and acceptance by~~ the approval of Lender and the Casualty Consultant~~, such acceptance not to be unreasonably withheld or delayed~~. All out-of-pocket costs and expenses incurred by Lender in connection with ~~making~~ recovering, holding and advancing the Net Proceeds ~~available~~ for the Restoration including, without limitation, reasonable ~~counsel~~ attorneys’ fees and disbursements and the Casualty Consultant’s ~~fees~~fees and disbursements, 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~~ less the ~~Restoration~~ Casualty Retainage. The term “~~Restoration~~ Casualty Retainage” shall mean, as ~~used~~ to each contractor, subcontractor or materialman engaged in ~~this Subsection 7.4(b) shall mean~~ 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 ~~such time as~~ the ~~Casualty Consultant certifies to Lender that Net Proceeds representing 50% of the required~~ Restoration ~~have~~ has 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~~completed. The ~~Restoration~~ Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this ~~Subsection 7.4(b~~Section 5.4(d), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The ~~Restoration~~ 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 7.4(b~~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 and quasi-governmental authorities~~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~~ Casualty Retainage, ; provided, however, that Lender will release the portion of the ~~Restoration~~ Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which (x) the Casualty Consultant certifies to Lender that ~~the~~ such contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of ~~the~~ such contractor’s, subcontractor’s or materialman’s contract, ~~and~~ (y) 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 (z) Lender receives an endorsement to the Title Insurance Policy insuring the ~~lien~~ continued priority of the ~~Security Instrument~~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 ~~Restoration~~ 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: Loan Agreement (American Residential Properties, Inc.)

Restoration. The following provisions shall apply in connection with the Restoration of any Individual Property (provided, that, Borrower shall not be required to restore an Individual Property that is a Leased Fee Leased Restoration Failure Property that has been released in accordance with Section 2.7(d) and Section 7.2 hereof nor shall Borrower be required to restore to the ~~Property:~~extent such restoration is not required pursuant to the proviso in the first sentence of Section 7.2): (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A) no Event of Default shall have occurred and be ~~continuing~~continuing and the Anticipated Repayment Date shall not have occurred; (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 fair market value of the applicable Individual Property as reasonably determined by Lender and (ii) rentable area of the applicable Individual Property is taken, such land is located along the perimeter or periphery of the applicable Individual Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the applicable Individual Property; (C) ~~Leases demising in~~ the ~~aggregate a percentage amount equal~~ Lease related to ~~or greater than 75% of the total rentable space in the~~ such Individual Property which ~~has been demised under executed and delivered Leases in effect as of the date of the occurrence of~~ is subject to such ~~fire~~ Casualty or ~~other casualty or taking, whichever the case may be,~~ Condemnation 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~~ such Lease shall continue ~~to operate their respective space~~ at ~~the~~ such 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; (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 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 the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the ~~Maturity~~ Anticipated Repayment Date, (2) six (6) months after the occurrence of such fire or other casualty or ~~taking~~taking (or such longer period as Lender may reasonably determine), (3) the earliest date required for such completion under the terms of any ~~Major Leases~~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 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 applicable Individual Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal ~~Requirements~~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~~Requirements and the Property Documents; (L) ~~Lender shall be satisfied,~~ the Property Documents will remain in ~~its sole~~ full force and ~~absolute discretion, that~~ effect during and after the Restoration and a Property Document Event shall not occur as a result of the ~~Property will not be limited or restricted by the terms of the ZLDA~~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 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 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 1 contract

Samples: Loan Agreement (Safety, Income & Growth, Inc.)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the Property~~any Property affected by a Casualty: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~shall~~ reasonably expected to be received in connection with any single Casualty event is less than the ~~Restoration~~ Casualty Threshold Amount, then, (i) if no Event of Default shall have occurred and ~~the costs of completing the Restoration shall~~ be ~~less than the Restoration Threshold~~continuing and, ~~the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all~~ within sixty (60) days of the ~~conditions set forth in Section 7.4(b)(i) are met and~~ date of the occurrence of such Casualty, Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration of the affected Properties in accordance with the terms of this Agreement, then (A) if Net Proceeds are paid by the insurance company directly to Borrower subsequent to delivering such undertaking, such Net Proceeds may be retained by Borrower (for the avoidance of doubt, Net Proceeds received by Borrower prior to delivering such undertaking shall be immediately paid to Lender as required by Section 5.2), (B) if Net Proceeds are paid by the insurance company to Lender, such Net Proceeds will be disbursed by Lender to Borrower and (C) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of Section 5.4(c) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall be applied to the prepayment of the Debt in an amount equal to the Release Amount for such Property in accordance with Section 2.4.2(c), (D) Borrower shall prepay the Loan in an amount equal to the excess, if any, of the Release Amount for such Property over such Net Proceeds, and (E) promptly following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, if any, Lender shall (x) release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (A) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (B) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (y) disburse to Borrower (A) in the case of a substitution of a Substitute Property for such Property, the Net Proceeds paid by the insurance company and (B) in the case of the payment of the Release Amount for such Property, the Net Proceeds paid by the insurance company in excess of the Release Amount for such Property, if any; provided that, during the continuance of a Cash Sweep Period, the applicable Net Proceeds shall instead be delivered to the Cash Collateral Subaccount and disbursed in accordance with Section 6.6.3. (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~are equal~~ reasonably expected to or be received in connection with any single Casualty event is greater than the ~~Restoration~~ Casualty Threshold ~~or the costs of completing the Restoration are equal to or greater than the Restoration Threshold~~Amount, ~~Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.~~ then, (i) ~~The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A)~~ if no Event of Default shall have occurred and be ~~continuing;~~ continuing and, within sixty (B60) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as days of the date of the occurrence of such ~~fire or other casualty or taking~~Casualty, ~~whichever~~ Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the ~~case may be, shall remain in full force and effect during and after the completion~~ Restoration of the ~~Restoration~~affected Properties in accordance with the terms of this Agreement, ~~notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and~~ then (A) Borrower ~~furnishes~~ shall immediately deliver to Lender ~~evidence satisfactory~~ any Net Proceeds paid to Borrower as required by Section 5.2 and (B) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of and subject to the conditions of Section 5.4(d) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender ~~that all Tenants under Major Leases~~ any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall ~~continue~~ be applied to ~~operate their respective space at~~ the ~~Property after the completion~~ prepayment of the ~~Restoration;~~ Debt in an amount equal to the Release Amount for such Property in accordance with Section 2.4.2(c), (D) Borrower shall prepay the Loan in an amount equal to the excess, if any, of the Release Amount for the affected Properties over such Net Proceeds, and (E) promptly following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, if any, Lender shall (x) release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (A) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (B) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (y) disburse to Borrower (A) in the case of a substitution of a Substitute Property for such Property, the Net Proceeds paid by the insurance company and (B) in the case of the payment of the Release Amount for such Property, the Net Proceeds paid by the insurance company in excess of the Release Amount for such Property, if any; provided that, during the continuance of a Cash Sweep Period, the applicable Net Proceeds shall instead be delivered to the Cash Collateral Subaccount and disbursed in accordance with Section 6.6.3. (c) If Borrower elects to undertake the Restoration a Property or Properties pursuant to Section 5.4(a), (i) Borrower shall commence ~~(or shall cause the commencement of)~~ the Restoration as soon as reasonably practicable (but in no event later than ~~thirty~~ ninety (3090) days after ~~the issuance of a building permit with respect thereto~~such Casualty occurs) and shall diligently pursue the same to satisfactory ~~completion~~ completion; (ii) Borrower shall cause the affected Property and the use thereof after the Restoration to be in compliance with and permitted under all applicable Legal Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (iii) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal ~~Requirements~~Requirements and the Renovation Standards and (iv) for any Restoration of a Property with a total expected cost exceeding $20,000, ~~including~~Borrower shall deliver, ~~without limitation~~or cause to be delivered, ~~all applicable Environmental Laws;~~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. (Ed) If Borrower elects to undertake the Restoration of a Property or Properties pursuant to Section 5.4(b), the following provisions shall apply: (i) the Net Proceeds shall be made available to Borrower for Restoration upon the determination of Lender that the following conditions are met: (A) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than ninety (90) days after such Casualty occurs) and shall diligently pursue the same to satisfactory completion; (B) Lender shall be satisfied that any operating ~~deficits~~ deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the ~~Property~~ Properties as a result of the occurrence of ~~any such fire or other casualty or taking~~ the Casualty, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section ~~7.1(a)(iii) above~~5.1.1(a)(ii), if applicable, 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; (HC) 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 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 1 contract

Samples: Loan Agreement (American Homes 4 Rent)

Restoration. ~~The following provisions shall apply in connection with~~ Promptly after the ~~Restoration~~ occurrence of any damage or destruction to any portion of the Mortgaged Property or a Taking of a portion of the Mortgaged Property~~: (a) Subject to Section 7.4(c) hereof~~, ~~if the Net Proceeds~~ Mortgagor shall be ~~less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold~~obligated, ~~the Net~~ at its expense (whether or not Property Proceeds ~~will be disbursed by Lender to Borrower upon receipt~~are sufficient for such purpose, provided that all of the conditions set forth in Section 7.4(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) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender Mortgagee shall make the ~~Net~~ Property Proceeds available ~~for~~ to Mortgagor) to effect the ~~Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available for Restoration provided that each~~ repair, restoration and rebuilding of the ~~following conditions are met:~~ Mortgaged Property to substantially the same condition such Mortgaged Property was in prior to the casualty (~~A) no Event~~ or in the case of ~~Default shall have occurred and be continuing; (B~~a Taking, to the extent it is capable of being restored) (1such repair, restoration and rebuilding are sometimes hereinafter collectively referred to as the "Work") 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 so 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, remaining after such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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 Taking in compliance with all applicable Legal Requirements, ~~including~~insurance requirements and any applicable Property Lease (which non-compliance could or would have a material adverse effect upon the Mortgaged Property or any material portion thereof, ~~without limitation~~or the utility or operation thereof), and free and clear of any and all ~~applicable Environmental Laws;~~ liens except Permitted Liens, and Mortgagee shall (Eto the extent provided by Section 4.6(c)(2) ~~Lender shall be satisfied that any operating deficits which will be incurred~~ below and, prior to the Final Disbursement Date, pursuant to the terms of the Disbursement Agreement) make the net Property Proceeds available to Mortgagor 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 Taking for such completion under the terms of any Major Leases, (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 shall guaranty to Lender the lien-free completion by Borrower of the Restoration Work in accordance with the provisions of this ~~Subsection 7.4(b)~~Mortgage. (1) If, pursuant to the terms of this Section 4.6, Proceeds are not deemed to be "Net Cash Proceeds" under the Loan Agreement, then Mortgagee shall make the Property Proceeds which it is holding pursuant to the terms hereof available to Mortgagor for payment of or reimbursement of Mortgagor's expenses incurred with respect to the Work, upon receipt of a certificate signed by an officer of Mortgagor stating that: (A) there exists no continuing Event of Default which would not be cured by the Work; (JB) the ~~Property and~~ estimated cost of the ~~use thereof~~ Work (as estimated by the Construction Supervisor, if such estimate is performed on or before the Final Disbursement Date, or by an Independent Architect, if such estimate is performed after the ~~Restoration will be in compliance with and permitted under all applicable Legal Requirements; (K~~Final Disbursement Date) does or does not exceed the Restoration shall be done and completed in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements; (L) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDAProceeds available; and (MC) 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 require that the Work be done in a first-class workmanlike manner at least equivalent to the quality and ~~all permits, licenses and approvals required or obtained in connection with the Restoration. The identity~~ character of the ~~contractors, subcontractors and materialmen engaged~~ original work in the ~~Restoration~~ Improvements, so that upon completion thereof, the Mortgaged Property shall be ~~subject to prior review~~ of reasonably equivalent value 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 general utility to the ~~Policy under which such claim is brought has not raised any act of the insured as a defense~~ Mortgaged Property prior to the ~~payment of such claim. If an Event of Default exists, Lender shall, at its election, have the exclusive right to settle~~ damage 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, destruction; provided, however, that ~~Lender will release~~ in the ~~portion~~ case of a Taking the restoration 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 Mortgaged Property shall be done to the ~~contractor, subcontractor or materialman as may be~~ extent reasonably ~~requested by Lender or by~~ practicable after taking into account the ~~title company insuring the lien~~ consequences 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~~Taking.

Appears in 1 contract

Samples: Mortgage Agreement (Transamerican Refining Corp)

Restoration. The following provisions shall apply in connection with the Restoration of the Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (C) Leases demising in the aggregate a percentage amount equal to or greater than 7565% 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 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, (I) 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~~Condemnation and (II) Restoration of the Improvements on the Land (as each existed immediately prior to the applicable casualty or condemnation (with such changes to the 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 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 ~~Major Leases~~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 ~~shall guaranty~~ 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~~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~~Requirements and the Property Documents; (L) ~~Lender shall be satisfied,~~ the Property Documents will remain in ~~its sole~~ full force and ~~absolute discretion, that~~ effect during and after the Restoration and a Property Document Event shall not occur as a result of the ~~Property will not be limited or restricted by the terms of the ZLDA~~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 1 contract

Samples: Loan Agreement (Clipper Realty Inc.)

Restoration. ~~The following provisions shall apply in connection with the Restoration~~ Sections 6.4, 10.15, and 10.32 of the ~~Property~~Lease are hereby amended as follows: (a) Subject to Section 7.4(c) hereof, if the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The ~~Net Proceeds shall be made available for Restoration provided that each~~ third sentence of Section 6.4(d) is amended and restated as follows: “With respect to any Alterations (as such term is defined herein) constructed by Tenant after the 26 day of October, 2023 (herein, the “Reference Date”), Landlord reserves the option to require Tenant, at Tenant’s sole cost and expense, to remove all fixtures, alterations, additions, decorations, or installations installed by Tenant, collectively in this Section called “Alterations,” and to restore the Property to the same condition as existed at time said Alterations were constructed or installed, reasonable wear and tear excepted, if Landlord gives Tenant written notice electing to require said removal and restoration prior to the expiration or other termination 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~~Term; provided, ~~less than thirty percent (30%) of each of (i) fair market value~~ however, that Tenant may, at such time as it requests Landlord's approval for Tenant to make Alterations, request that Landlord either allow such Alterations to remain upon expiration of the ~~Property as reasonably determined~~ Lease, or that Landlord requires such Alterations to be removed by ~~Lender~~Tenant upon expiration of the Term, and Landlord agrees to provide Xxxxxxxx's decision with respect to such change at the time of a request by Xxxxxx for that decision. Any such request from Tenant regarding removal of Alterations shall conspicuously state in bold, uppercase typeface that Tenant will not be required to remove the Alterations in question at the end of the Term unless, contemporaneously with Xxxxxxxx's notice of approval to Tenant with respect to the Alterations in question, Landlord notifies Tenant in writing that Landlord will require Tenant to remove such alterations prior to the expiration of the Term.” (ii) ~~rentable area~~ The following sentence is added to the end of Section 6.4(d): “For the avoidance of doubt, Tenant shall have no obligation to remove or restore any alterations or improvements made in the Premises or 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access Tenant prior to the ~~Property;~~Reference Date.” (Ciii) ~~Leases demising in the aggregate a percentage amount equal to or greater than 75%~~ The first two sentences of ~~the total rentable space in the Property which has been demised under executed~~ Section 10.32(f) are amended and ~~delivered Leases in effect~~ restated 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; follows: “Within five (~~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~~5) 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 date that Tenant no longer leases any ~~operating deficits which will be incurred with respect to the Property as a result~~ of the ~~occurrence of any~~ rentable square footage in a particular Building, Tenant shall, at its risk and expense, remove the Rooftop Equipment from such ~~fire~~ Building that was installed on or ~~other casualty or taking will be covered out of~~ after the Reference Date. In addition, within five (15) days after (A) the ~~Net Proceeds~~termination of this Lease, (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 Major Leases, (4) such time as may be required under applicable Legal Requirements or (5B) the expiration of the ~~insurance coverage referred to in Section 7.1(a)(iii~~Term, or (C) 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 shall guaranty to Lender the lien-free completion by Borrower Tenant’s vacating all 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) Lender shall be satisfiedPremises, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 Tenant shall, at its ~~election~~risk and expense, 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 remove all Rooftop Equipment 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 was installed on or after 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 materialmanReference Date.”

Appears in 1 contract

Samples: Lease Agreement (Advanced Micro Devices Inc)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c~~If any Net Award is in excess of Two Hundred Thousand Euros (E200.000,00), Landlord (or Lender if required by any Mortgage) ~~hereof, if~~ shall hold the Net ~~Proceeds shall be less than~~ Award in a fund (the "Restoration Fund") and disburse amounts from the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund only in accordance with the terms of this Agreement. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.following conditions: (i) ~~The Net Proceeds~~ prior to commencement of restoration, the architects, contracts, contractors, plans and specifications and a budget for the restoration shall ~~be made available for Restoration provided that each of the following conditions are met:~~have been approved by Landlord; (Aii) at the time of any disbursement, no Event of Default shall ~~have occurred and be continuing~~exist; (iii) disbursements shall be made from time to time in an amount not exceeding the cost of the Work completed since the last disbursement, upon receipt of (A) satisfactory evidence, including architects' statements, of the stage of completion, the estimated total cost of completion and performance of the Work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) contractors' and subcontractors' written statements as to completed Work and the cost thereof for which payment is requested and (1C) other evidence of cost and payment so that Landlord can verify that the amounts disbursed from time to time are represented by Work that is completed, in place; (iv) each request for disbursement shall be accompanied by a certificate of Tenant, signed by an authorized officer of Tenant, describing the ~~event~~ Work for which payment is requested, stating the ~~Net Proceeds are insurance proceeds~~cost incurred in connection therewith, ~~less than thirty percent (30%) of each of (i) fair market value~~ stating that Tenant has not previously received payment for such Work and, upon completion of the ~~Property as reasonably determined by Lender~~Work, ~~and (ii) rentable area of~~ also stating that the ~~Property~~ Work has been ~~damaged, destroyed or rendered unusable as a result~~ fully completed and complies with the applicable requirements of ~~a Casualty or~~ this Lease; (2v) ~~in the event the Net Proceeds are condemnation proceeds, less than~~ Landlord may retain ten percent (10%) of ~~each~~ the Restoration Fund until the Work is fully completed, and upon completion such retained amount shall be released to Tenant for payment to the contractors; (vi) If the Restoration Fund is held by Landlord, the Restoration Fund shall not be commingled with Landlord's other funds and shall bear interest at a rate agreed to by Landlord and Tenant; and (vii) such other reasonable and customary construction requirements in Germany as Landlord may impose. (b) Prior to commencement of ~~(i)~~ restoration and at any time during restoration, if the ~~fair market value~~ estimated cost of completing the ~~Property~~ restoration Work free and clear of all liens, as reasonably determined by ~~Lender and (ii) rentable area~~ Landlord, exceeds the amount of the ~~Property is taken~~Net Award available for such restoration, the amount of such ~~land is located along the perimeter or periphery of the Property~~excess shall, ~~no portion of the Improvements is located on such land and such taking does not materially impair the existing access~~ upon demand by Landlord, be paid by Tenant to Landlord to be added to the ~~Property; (C) Leases demising~~ Restoration Fund. Any sum so added by Tenant which remains in the ~~aggregate a percentage amount equal~~ Restoration Fund upon completion of restoration shall be refunded to ~~or greater than 75%~~ Tenant. For purposes of determining the ~~total rentable space in~~ source of funds with respect to the ~~Property which has been demised under executed and delivered Leases in effect as~~ disposition 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~~ funds remaining after the completion of restoration, 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 Net Award shall be ~~satisfied that any operating deficits which will~~ deemed to 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 disbursed 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 Major Leases, (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 shall guaranty to Lender the lien-free completion amount added 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 therewithTenant. (iic) ~~The~~ Landlord shall not be required to disburse from the Restoration Fund any amounts for VAT unless the Net ~~Proceeds shall be held by Lender and, until disbursed in accordance with~~ Award expressly includes VAT. In the ~~provisions~~ event that Landlord is entitled to a refund 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 VAT paid for ~~out of the requested disbursement)~~ materials being purchased in connection with the ~~related Restoration item have been paid~~ restoration Work, then, Landlord, with the cooperation of Tenant, shall promptly apply for ~~in full,~~ such a refund and ~~(B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention~~ disburse such amounts to ~~file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not either been fully bonded~~ Tenant to the ~~satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction of Lender~~ extent such VAT was paid by ~~the title company issuing the Title Insurance Policy~~Tenant. (~~iii~~d) 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 If any sum remains in the Restoration Fund after completion of the restoration and any refund to Tenant pursuant to Paragraph 19(b), such sum (the "Remaining Sum") shall be ~~subject to prior review and acceptance~~ retained by ~~Lender and the Casualty Consultant~~Landlord or, ~~such acceptance not to be unreasonably withheld~~ if required by a Note or ~~delayed. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration including~~Mortgage, ~~without limitation, reasonable counsel fees and disbursements and the Casualty Consultant’s fees, shall be~~ paid by ~~Borrower. Borrower shall have the right~~ Landlord to ~~settle all claims under the Policies jointly with~~ a 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 1 contract

Samples: Lease Agreement (Corporate Property Associates 16 Global Inc)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the~~ an Individual Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 each of (i) the fair market value of the affected Individual Property as reasonably determined by Lender, and (ii) the rentable area of the affected 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 fair market value of the affected Individual Property as reasonably determined by ~~Lender and~~ Lender, (ii) the rentable area of the affected Individual Property is taken, such land is located along the perimeter or periphery of the affected Individual Property, no portion of the Improvements is located on such ~~land~~ land, and such taking does not materially impair ~~the existing~~ access to the affected Individual Property; (C) Leases demising in the aggregate a percentage amount equal to or greater than ~~75%~~ seventy percent (70%) of the total rentable space in the affected 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 with respect to the affected Individual Property during and after the completion of the ~~Restoration~~Restoration (other than Leases which automatically expire by their terms during such period), 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)~~ of the Restoration as soon as reasonably practicable (but in no event later than ~~thirty~~ sixty (3060) days after the issuance of a building permit with respect thereto, subject to delays due to force majeure of no more than ninety (90) days) and shall diligently pursue the same to satisfactory completion in compliance with all ~~applicable Legal Requirements~~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 affected 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, upon the completion of the Restoration, the fair market value and cash flow of the affected Individual Property will not be less than the fair market value and cash flow of the affected Individual Property as the same existed immediately prior to the applicable Casualty or Condemnation (assuming the affected portion of the affected Individual Property is relet within a reasonable period after the date of such Casualty or Condemnation); (HG) 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~~ the expiration of the insurance coverage referred to in Section 7.1(a)(iii) above, (63) ~~months after~~ such time as may be required under applicable zoning law, ordinance, rule or regulation in order to repair and restore the ~~occurrence of~~ affected Individual Property substantially to the condition it was in immediately prior to such fire or other casualty or taking, or (34) the earliest date required for such completion under the terms of any ~~Major Leases~~REA and any Ground Lease and Bond 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~~if applicable; (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 shall guaranty to Lender the lien-free completion by Borrower of the Restoration in accordance with the provisions of this Subsection 7.4(b); (JH) the affected Individual Property and the use thereof after the Restoration will be in compliance with and permitted under ~~all~~ any Applicable Laws and any applicable ~~Legal Requirements~~Ground Lease and in material compliance with any applicable Bond Documents and any REA; (KI) the Restoration shall be done and completed in an expeditious and diligent fashion and in compliance with the Ground Lease and Bond Documents, if applicable, any REA, and all ~~applicable Legal Requirements; (L) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA~~Applicable Laws; and (MJ) after Securitization 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~~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, (other than applicable retainage) 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 affected Individual Property (other than Permitted Encumbrances) which are not being contested by Borrower in accordance with the terms hereof, 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 issuing the Title Insurance Policy. (iii) All plans and specifications required in connection with any Restoration for which the cost is expected to exceed the Restoration Threshold 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, conditioned or delayed. Lender shall have the use of ~~the~~ all such plans and specifications and all permits, licenses and approvals required or obtained in connection with the ~~Restoration~~Restoration and the same shall be collaterally assigned to Lender as additional collateral for the Loan. The identity of the ~~contractors,~~ contractors and subcontractors ~~and materialmen~~ engaged in any Restoration for which the cost is expected to exceed the Restoration Threshold shall be subject to prior review and acceptance by Lender and the Casualty ~~Consultant, such~~ Consultant which acceptance shall not to be unreasonably ~~withheld~~ 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 outside 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~~Policies, 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; provided, further, that, Lender shall be permitted to participate in and reasonably approve the settlement or adjustment of any claims exceeding the Restoration Threshold. 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~~ Section 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~~ Section 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~~ Section 7.4(b) and that all approvals necessary for the re-occupancy and use of the affected 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. If reasonably 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 (Orion Office REIT Inc.)

Restoration. The following provisions shall apply in connection with the Restoration of the Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, then provided that no Event of Default has occurred and is continuing and the condition in Section 9.6 hereof has been satisfied, subject to Section 5.5 hereof, the Net Proceeds will be disbursed by ~~Lender~~ Xxxxxx to Borrower upon receipt~~, provided that all~~ . Promptly after receipt of the ~~conditions set forth in Section 7.4(b)(i) are met and~~ Net Proceeds, Borrower ~~delivers to Lender a written undertaking to expeditiously~~ shall commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement. If any Net Proceeds are received by Borrower and may be retained by Borrower pursuant to the terms hereof, such Net Proceeds shall, until completion of the Restoration, be held for the benefit of Lender and shall be segregated from other funds of Borrower to be used to pay for the cost of Restoration in accordance with the terms hereof. (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the ~~Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.~~Restoration (i) The Net Proceeds shall be made available 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 each of (i) fair market value of the affected Individual Property as reasonably determined by Lender, and (ii) rentable area of the affected 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 fair market value of the affected Individual Property as reasonably determined by Lender and (ii) rentable area of the affected Individual Property is taken, such land is located along the perimeter or periphery of ~~the~~ such Individual Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to ~~the~~ such Individual Property; ; (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 affected 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 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 1 contract

Samples: Loan Agreement (Silver Star Properties Reit, Inc)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c~~Landlord (or Lender if required by any Mortgage) ~~hereof, if~~ shall hold Net Award in excess of the ~~Net Proceeds shall be less than~~ Major Alteration Cost in a fund (the "Restoration Fund") and disburse amounts from the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund only in accordance with the terms of this Agreement. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.following conditions: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ prior to commencement of ~~the following conditions are met:~~ restoration, (A) the architects, contracts, contractors, plans and specifications for the restoration shall have been reasonably approved by Landlord, (B) Landlord and Lender shall be provided with mechanics' lien insurance (if available) and acceptable performance and payment bonds (or other security reasonably satisfactory to Landlord and Lender) which insure satisfactory completion of and payment for the restoration, are in an amount and form and have a surety acceptable to Landlord, and name Landlord and Lender as additional dual obligees, and (C) appropriate waivers of mechanics' and materialmen's liens shall have been filed; (ii) at the time of any disbursement, no Event of Default shall exist and no mechanics' or materialmen's liens shall have ~~occurred~~ been filed against any of the Leased Premises and ~~be continuing~~remain undischarged or unbonded; (iii) disbursements shall be made from time to time in an amount not exceeding the cost of the work completed since the last disbursement, upon receipt of (A) satisfactory evidence, including architects' certificates, of the stage of completion, the estimated total cost of completion and performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (1C) contractors' and subcontractors' sworn statements as to completed work and the cost thereof for which payment is requested, (D) a satisfactory bringdown of title insurance and (E) other evidence of cost and payment so that Landlord can verify that the amounts disbursed from time to time are represented by work that is completed, in place and free and clear of mechanics' and materialmen's lien claims; (iv) each request for disbursement shall be accompanied by a certificate of Tenant, signed by the ~~event~~ president or a vice president of Tenant, describing the ~~Net Proceeds are insurance proceeds~~work for which payment is requested, ~~less than thirty percent (30%) of each of (i) fair market value~~ stating the cost incurred in connection therewith, stating that Tenant has not previously received payment for such work and, upon completion of the ~~Property as reasonably determined by Lender~~work, ~~and (ii) rentable area of~~ also stating that the ~~Property~~ work has been ~~damaged, destroyed or rendered unusable as a result~~ fully completed and complies with the applicable requirements of ~~a Casualty or~~ this Lease; (2v) ~~in the event the Net Proceeds are condemnation proceeds, less than~~ Landlord may retain ten percent (10%) of ~~each of (i)~~ the ~~fair market value of~~ Restoration Fund until the ~~Property as reasonably determined by Lender and (ii) rentable area of the Property~~ restoration is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Propertyfully completed; (Cvi) ~~Leases demising~~ if the Restoration Fund is held by Landlord, the Restoration Fund shall not be commingled with Landlord's other funds and shall bear interest at a rate reasonably agreed to by Landlord and Tenant; and (vii) such other reasonable and customary conditions as Landlord or Lender may impose. (b) Prior to commencement of restoration and at any time during restoration, if the estimated cost of completing the restoration work free and clear of all liens, as determined by Landlord, exceeds the amount of the Net Award available for such restoration, the amount of such excess shall, upon demand by Landlord, be paid by Tenant to Landlord to be added to the Restoration Fund. Any sum so added by Tenant which remains in the ~~aggregate a percentage amount equal~~ Restoration Fund upon completion of restoration shall be refunded to ~~or greater than 75%~~ Tenant. For purposes of determining the ~~total rentable space in~~ source of funds with respect to the ~~Property which has been demised under executed and delivered Leases in effect as~~ disposition 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~~ funds remaining after the completion of restoration, the ~~Restoration, notwithstanding~~ Net Award shall be deemed to be disbursed prior to any amount added by Tenant. (c) If any sum remains in 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 Restoration Fund 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) restoration and ~~shall diligently pursue the same~~ any refund to ~~satisfactory completion in compliance with all applicable Legal Requirements~~Tenant pursuant to Paragraph 19(b), ~~including, without limitation, all applicable Environmental Laws; (E) Lender~~ such sum shall be ~~satisfied that any operating deficits which will be incurred with respect to the Property as~~ retained by Landlord or, if required by a ~~result of the occurrence of any such fire~~ Note or ~~other casualty or taking will be covered out of (1) the Net Proceeds~~Mortgage, (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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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~~ Landlord to ~~settle all claims under the Policies jointly with~~ a 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 1 contract

Samples: Lease Agreement (Atrium Companies Inc)

Restoration. ~~The following provisions~~ 15.1 Operator shall ~~apply~~ be obligated to remove and decommission all Windpower Facilities owned, utilized, placed or caused to be placed by Operator on the Property no longer utilized for Wind Energy Development and Operator shall restore the Property, as near as practicable, to the condition existing on the Effective Date of this Agreement (“Restoration Obligations”), all at Operator’s sole risk, cost and expense and subject to compliance with Applicable Law(s) and Applicable Procedure(s). 15.2 Unless doing so would be in ~~connection with~~ violation of Applicable Law(s), Operator shall complete the Restoration Obligations within a reasonable time (but no later than two (2) years ) following: (a) the date any Windpower Facilities are no longer utilized for Wind Energy Development; or (b) the date this Agreement has expired, terminated or been released (whichever occurs first) as to all or a portion of the Property~~: (a) Subject~~ . The failure of Operator to ~~Section 7.4(c) hereof, if the Net Proceeds shall be less than~~ timely complete the Restoration ~~Threshold~~ Obligations shall subject Operator to and make Operator liable for any and all costs or expenses of any kind incurred by the ~~costs~~ State for removing said Windpower Facilities, but in no instance shall title to or ownership of ~~completing~~ said Windpower Facilities automatically vest in or transfer to the State nor shall said structures or facilities be deemed “improvements” to the Property for purposes of vesting title in same to the State. 15.3 The Restoration Obligations shall end on the date the State accepts, through written notice, that the Restoration Obligations have been completed by Operator. Operator shall ~~be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender~~ cause to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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~~ and Restoration Security Deposit until the State accepts in writing that the Restoration Obligations have been completed. 15.4 The State recognizes Operator’s right to remove the the Windpower Facilities no longer utilized for Wind Energy Development. 15.5 Operator shall submit to OMR or its successor a “Decommissioning Plan” within six (6) months of the beginning of the Operational Term. The Decommissioning Plan shall include, but not be limited to the following: a) The manner in ~~Section 7.1(a)(iii~~which the Restoration Obligations will be performed; and b) ~~above~~A detailed estimate of the cost of decommissioning by a professional engineer licensed in the state of Louisiana that shall include the following: i. Dismantling and removing all towers, ~~or (3) by other funds~~ WTGs, transformers, overhead cables and debris of ~~Borrower~~the Windpower Facilities; ~~(F) Lender~~ ii. Removal of all cables or such portion of cables as required by Appicable Laws, Applicable Procedures and agreed to by OMR; and iii. Removal of all foundations, buildings, and ancillary equipment or such portions thereof as required by Appicable Laws, Applicable Procedures and agreed to by OMR; 15.6 OMR may reject the Decommissioning Plan if it does not adequately describe the cost of restoration and decommissioning. The determination of the Restoration Security amount required in Article 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 Decommissioning Plan. The Parties agree that the Restoration ~~will~~ Security and the Decommissioning Plan shall 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 Major Leases, (4) such time as may be required under applicable Legal Requirements or reviewed and updated once every five (5) ~~the expiration of the insurance coverage referred to in Section 7.1(a)(iii) above; (I) Borrower shall execute~~ years 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 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 Security shall be done and completed in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements; (L) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted increased as required by the terms of the ZLDA; 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 therewithupdated Decommissioning Plan. (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 1 contract

Samples: Wind Energy Production Agreement

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to~~ In the event that the Lease is not terminated as a result of any Condemnation or Casualty as provided in Section ~~7.4(c~~17 above, Landlord shall hold any Net Award in excess of One Million Dollars ($1,000,000) ~~hereof, if~~ in a fund (the ~~Net Proceeds shall be less than~~ “Restoration Fund”) and disburse amounts from the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund only in accordance with the terms of this Agreement. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.following conditions: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ prior to commencement of ~~the following conditions are met:~~ restoration, (A) the architects, contracts, contractors, plans and specifications for the restoration shall have been approved by Landlord, which approval shall not be unreasonably withheld, delayed or conditioned, and (B) if requested by Landlord, Landlord shall be provided with acceptable performance and payment bonds which insure completion of and payment for the restoration, are in an amount and form and have a surety acceptable to Landlord, and name Landlord as additional dual obligees; (ii) at the time of any disbursement, no Event of Default shall exist and no mechanics’ or materialmen’s liens shall have ~~occurred~~ been filed against the Leased Premises and ~~be continuing~~remain undischarged, subject to Tenant’s rights under Section 14 hereof; (iii) disbursements shall be made monthly in an amount not exceeding the cost of the work completed since the last disbursement, upon receipt of (A) satisfactory evidence, including architects’ certificates, of the stage of completion, the estimated total cost of completion and performance of the work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (1C) contractors’ and subcontractors’ sworn statements as to completed work and the cost thereof for which payment is requested and (D) a satisfactory bring-down of title insurance; (iv) each request for disbursement shall be accompanied by a certificate of Tenant, signed by an officer of Tenant, describing the work for which payment is requested, stating the cost incurred in ~~the event the Net Proceeds are insurance proceeds~~connection therewith, ~~less than thirty percent (30%) of each of (i) fair market value~~ stating that Tenant has not previously received payment for such work and, upon completion of the ~~Property as reasonably determined by Lender~~work, ~~and (ii) rentable area of~~ also stating that the ~~Property~~ work has been ~~damaged, destroyed or rendered unusable as a result~~ fully completed and complies with the applicable requirements of ~~a Casualty or~~ this Lease; (2v) ~~in the event the Net Proceeds are condemnation proceeds, less than~~ Landlord may retain ten percent (10%) of ~~each of~~ the Restoration Fund until the restoration is fully completed; (ivi) the ~~fair market value~~ Restoration Fund shall not be commingled with Landlord’s other funds and shall bear interest at a rate agreed to by Landlord and Tenant; (vii) such other customary reasonable conditions as Landlord may reasonably impose. (b) Prior to commencement of restoration and at any time during restoration, if the ~~Property~~ estimated cost of completing the restoration work free and clear of all liens, as reasonably determined by ~~Lender and (ii) rentable area~~ Landlord, exceeds the amount of the ~~Property is taken~~Net Award available for such restoration, the amount of such ~~land is located along the perimeter or periphery of the Property~~excess shall, ~~no portion of the Improvements is located on such land and such taking does not materially impair the existing access~~ within ten (10) days following written request by Landlord, be paid by Tenant to Landlord to be added to the ~~Property; (C) Leases demising~~ Restoration Fund or Tenant shall provide Landlord with reasonable adequate security to secure the payment of such excess as and when required. Any sum so added by Tenant which remains in the ~~aggregate a percentage amount equal~~ Restoration Fund upon completion of restoration shall be refunded to ~~or greater than 75%~~ Tenant. For purposes of determining the ~~total rentable space in~~ source of funds with respect to the ~~Property which has been demised under executed and delivered Leases in effect as~~ disposition 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~~ funds remaining after the completion of restoration, the ~~Restoration, notwithstanding~~ Net Award shall be deemed to be disbursed prior to any amount added by Tenant. (c) If any sum remains in 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 Restoration Fund 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) restoration and ~~shall diligently pursue the same~~ any refund to ~~satisfactory completion in compliance with all applicable Legal Requirements~~Tenant pursuant to Section 18(b), ~~including, without limitation, all applicable Environmental Laws; (E) Lender~~ such sum 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) retained 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 therewithLandlord. (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 1 contract

Samples: Master Lease (Equinix Inc)

Restoration. ~~The following provisions shall apply in connection with~~ If the Restoration of the Property: (a) Subject to Section 7.4(c) hereof, if the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed Premises are damaged by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as of the date of the occurrence of such fire or other ~~casualty~~ casualty, or ~~taking~~if the Building is damaged, ~~whichever~~ Landlord shall, to the ~~case may be, shall remain in full force and effect during and after the completion~~ extent 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; insurance proceeds received therefor (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;~~ that Landlord shall only be responsible to repair the Skylight to the extent of the insurance proceeds assigned and promptly paid to Landlord by Tenant and only if such Skylight and the entire roof membrane surrounding such Skylight is substantially damaged), be responsible only to repair and restore the Building (Eincluding the Common Areas) ~~Lender~~ Base Building Work and the Base Building Roof Work to substantially the condition it existed prior to such event (collectively, the “Casualty Work”), subject to the provisions of any Mortgage or Superior Lease, but Landlord shall ~~be satisfied~~ have no obligation to repair or restore (i) Tenant’s Property, (ii) any other portion of Landlord’s Premises Work, or (iii) any Alterations or improvements to the Premises. Until the date which is the earlier of (1) 120 days following the date on which the Casualty Work is Substantially Completed (or would have been Substantially Completed but for Tenant Delay) and Tenant has reasonable access to the Premises, or (2) the date on which Tenant occupies the portion of the Premises that ~~any operating deficits which will be incurred~~ has been damaged for the normal conduct of business, (i) with respect to the ~~Property as a result~~ Premises, Rent shall be reduced in the proportion by that area of the ~~occurrence~~ part of ~~any such fire~~ the Premises which is not usable (or ~~other casualty or taking will be covered out~~ accessible), and is not used by Tenant bears to the total area of ~~(1)~~ the ~~Net Proceeds~~Premises, ~~(2) the insurance coverage referred to in Section 7.1(a)(iii) above, or (3) by other funds of Borrower; (F) Lender~~ and Rent shall be ~~satisfied that~~ reduced on a floor by floor basis in the ~~Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient to cover the cost~~ same manner and if more than thirty (30%) percent of the ~~Restoration; (G) Lender~~ usable square footage of the Premises shall be ~~satisfied that, upon the completion of the Restoration~~inaccessible, 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 Premises shall be ~~satisfied that the Restoration will~~ deemed to be ~~completed on or before the earliest to occur of~~ wholly unusable (1and untenantable) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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~~ Tenant’s Roof Deck Area, Rent shall be reduced by 10% if 33% (or more) of usable square footage of Tenant’s Roof Deck Area is ~~brought has~~ not ~~raised any act of~~ usable (or accessible) provided if the ~~insured as a defense to~~ Premises and the ~~payment of such claim. If an Event of Default exists, Lender shall, at its election, have the exclusive right to settle~~ Tenant’s Roof Deck Area are both not usable (or ~~adjust any claims made under the Policies~~ inaccessible) in ~~the event of a Casualty. (iv) In~~ no event shall ~~Lender~~ the Rent be ~~obligated to make disbursements~~ reduced below zero (0). This Article 11 constitutes an express agreement governing any case of damage or destruction of the ~~Net Proceeds~~ Premises or the Building by fire or other casualty, and which shall supersede any Requirement providing for such contingency in ~~excess~~ the absence of an ~~amount equal to the costs actually incurred from time to time for work~~ express agreement, and any other law of like nature and purpose now or hereafter in ~~place as part~~ force, shall have no application in any such case. This Article 11 constitutes an express agreement governing any case of damage or destruction of the ~~Restoration~~Premises or the Building by fire or other casualty, ~~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%~~ and Section 227 of the ~~costs actually incurred for work in place as part~~ Real Property Law of the ~~Restoration~~State of New York, ~~as certified by~~ which provides for such contingency in the ~~Casualty Consultant, until such time as the Casualty Consultant certifies to Lender that Net Proceeds representing 50%~~ absence 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 eventan express agreement, and ~~notwithstanding anything to the contrary set forth above~~ any other law of like nature and purpose now or hereafter in ~~this Subsection 7.4(b)~~force, ~~be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged~~ shall have no application 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~~case.

Appears in 1 contract

Samples: Lease Agreement (2U, Inc.)

Restoration. ~~The following provisions shall apply in connection with the Restoration~~ If Mortgagee elects or is required hereunder to release funds to Mortgagor for restoration of any of the Mortgaged Property~~: (a) Subject to Section 7.4(c) hereof~~, ~~if the Net Proceeds~~ then such restoration shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration performed only in accordance with the terms of this Agreement. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.following conditions: (i) ~~The Net Proceeds~~ prior to the commencement of any restoration, the plans and specifications for such restoration, and the budgeted costs, shall be ~~made available for Restoration provided~~ submitted to and reasonably approved by Mortgagee; provided, that ~~each~~ if Mortgagee fails to approve or deny approval within 10 days of its receipt of such submission, Mortgagee shall be deemed to have consented to such proposal; (ii) prior to making any advance of restoration funds, Mortgagee shall be reasonably satisfied that the remaining restoration funds are sufficient to complete the restoration and to pay all related expenses, including interest on the Indebtedness and real estate taxes on the Premises, during restoration, or that Mortgagor will otherwise be able to pay the same out of other funds; (iii) at the time of any disbursement of the ~~following conditions are met:~~ restoration funds, (A) no Event of Default shall ~~have occurred~~ then exist and be ~~continuing~~continuing and (B) no mechanics' or materialmen's liens shall have been filed and remain undischarged, except those either discharged by the disbursement of the requested restoration funds or being contested in accordance with Section 6 above; (Biv) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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 disbursements shall be ~~satisfied that any operating deficits which will be incurred with respect~~ made from time 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~~ time 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 an amount not exceeding the cost of the ~~Restoration; (G) Lender shall be satisfied that~~work completed since the last disbursement, upon ~~the completion~~ receipt by Mortgagee of a certificate from Mortgagor's architect of the ~~Restoration, the fair market value~~ stage of completion and ~~cash flow~~ of performance of the ~~Property will not be less than the fair market value~~ work in a good 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 Major Leases, (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 workmanlike manner 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 substantially in accordance with the ~~provisions of this Subsection 7.4(b)~~contracts, plans and specifications reasonably acceptable to Mortgagee; (Jv) the ~~Property~~ restoration funds shall bear interest and ~~the use thereof after the Restoration will~~ may not be ~~in compliance~~ commingled with ~~and permitted under all applicable Legal Requirements~~Mortgagee's other funds; (Kvi) the Restoration shall be done and completed in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements; (L) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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, restoration funds remaining shall be paid to Mortgagor or, at Mortgagor's option, be applied 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 Mortgagee to the ~~Policy under which such claim is brought has not raised any act of~~ Indebtedness in the ~~insured as a defense~~ order specified in the [Credit Agreement/Shared Collateral Agreement] or to other expenses related 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 RestorationMortgaged Property, 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 materialmanherein permitted.

Appears in 1 contract

Samples: Credit Agreement (SPX Corp)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the Property~~Properties affected by a Casualty: (a) ~~Subject to Section 7.4(c~~If (i) ~~hereof, if~~ the Net Proceeds ~~shall~~ reasonably expected to be received in connection with any single Casualty event is less than the Restoration Threshold Amount and ~~the costs of completing~~ (ii) the Restoration Conditions are satisfied, then (A) if Net Proceeds are paid by the insurance company directly to Borrower subsequent to delivering the undertaking required by the Restoration Conditions, such Net Proceeds may be retained by Borrower (for the avoidance of doubt, Net Proceeds received by Borrower prior to delivering the undertaking required by the Restoration Conditions shall be ~~less than~~ immediately paid to Lender as required by Section 4.2), (B) if Net Proceeds are paid by the ~~Restoration Threshold~~insurance company to Lender, ~~the~~ such Net Proceeds will be disbursed by Lender to Borrower ~~upon receipt, provided that all~~ and (C) Borrower shall conduct the Restoration of the ~~conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration~~ affected Properties in accordance with the terms of ~~this Agreement~~Section 4.4(d) and 4.4(e). (b) ~~Subject to Section 7.4(c~~If (i) ~~hereof, if~~ the Net Proceeds ~~are equal~~ reasonably expected to or be received in connection with any single Casualty event is greater than the Restoration Threshold ~~or the costs of completing~~ Amount and (ii) the Restoration Conditions are ~~equal~~ satisfied, then (A) Borrower shall immediately deliver to ~~or greater than~~ Lender any Net Proceeds paid to Borrower and (B) Borrower shall conduct the Restoration ~~Threshold, Lender shall make~~ of the ~~Net Proceeds available for the Restoration~~ affected Properties in accordance with the ~~provisions~~ terms of ~~this Section 7.4~~and subject to the conditions of Sections 4.4(d) and 4.4(e). (c) If following a Casualty, the Restoration Conditions are not satisfied, then (i) ~~The~~ Lender may retain any Net Proceeds received by it, (ii) Borrower shall immediately deliver to Lender any Net Proceeds paid to Borrower, (iii) such Net Proceeds shall be ~~made available~~ applied to the prepayment of the Debt in accordance with Section 1.4.2(b), (iv) Borrower shall prepay the Loan in an amount equal to the positive difference between such Net Proceeds and the Allocated Loan Amount for ~~Restoration~~ the affected Properties, together with all interest and other amounts required to be paid in connection therewith under Section 1.4.4, and (v) following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (iv) above, Lender shall release the affected Properties from the applicable Mortgages and related Liens, provided that ~~each of the following conditions are met:~~ (A) ~~no Event~~ Borrower has delivered to Lender draft releases (and, in the event any of ~~Default~~ the Mortgages applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall ~~have occurred~~ be a partial release that relates only to the affected Property(ies) and ~~be continuing;~~ does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (B) Borrower shall pay all costs, Taxes and expenses associated with such release (1including cost to file and record the release and Lender’s reasonable attorneys’ fees). (d) in If the ~~event the Net Proceeds~~ Restoration Conditions are ~~insurance proceeds, less than thirty percent (30%~~satisfied under Section 4.4(a) ~~of each of~~ or 4.4(b) then (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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~~ ninety (3090) days after ~~the issuance of a building permit with respect thereto~~such Casualty occurs) and shall diligently pursue the ~~same~~ Restoration to satisfactory ~~completion in compliance with all applicable Legal Requirements, including, without limitation, all applicable Environmental Laws;~~ completion; (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 Major Leases, (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; (Iii) Borrower shall ~~execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender and its counsel pursuant to~~ cause 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 7.4(b); (J) the~~ affected Property and the use thereof after the Restoration ~~will~~ to be in compliance with and permitted under all applicable Legal ~~Requirements;~~ Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (Kiii) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal ~~Requirements;~~ Requirements and (Liv) 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 ~~satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; and (M) Lender shall be satisfied that making~~ reasonably acceptable to Lender. If at any time the Net Proceeds ~~available for Restoration~~ or the unused portion thereof shall ~~be permitted pursuant to REMIC Requirements and~~not, in ~~that regard~~the opinion of Lender, be sufficient to pay in full the balance of the costs which are estimated by Lender ~~may require Borrower~~ to ~~deliver a REMIC Opinion~~ be incurred in connection ~~therewith.~~ with the completion of the Restoration, Borrower shall deposit the deficiency (iithe “Net Proceeds Deficiency”) ~~The~~ with Lender before any further use or disbursement of the Net Proceeds shall be ~~held~~ made. The Net Proceeds Deficiency deposited with Lender shall be deposited by Lender ~~and, until~~ into the Casualty and Condemnation Subaccount and shall be disbursed for costs actually incurred in ~~accordance~~ connection with the ~~provisions~~ Restoration on the same conditions applicable to the disbursement of ~~this~~ the Net Proceeds pursuant to Section ~~7.4(b~~4.4(e), and until so disbursed, 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 PolicyObligations. (e) If the Restoration Conditions are satisfied under Section 4.4(b), then Lender may impose such reasonable requirements on the use or expenditure of Net Proceeds as Lender may require, in accordance with Lender’s standard construction lending practices or in any other manner approved by Lender. Without limiting the generality of the foregoing, Lender may, at its option, condition disbursement of Net Proceeds on (i) delivery of an Expenditures Certificate reasonably satisfactory to Lender, (ii) completion of a property inspection reasonably satisfactory to Lender, (iii) ~~All~~ Lender’s approval of plans and specifications ~~required in connection with the Restoration shall be subject~~ of an architect satisfactory 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~~ the identity, experience, reputation and financial condition of contractors and subcontractors; (v) contractor’s cost estimates; (vi) architect’s certificates; (vii) waivers of liens; (viii) sworn statements of mechanics and materialmen and such other evidence of costs; (ix) percentage completion of construction; (x) frequency of disbursements; (xi) application of payments; (xii) customary retainage and satisfaction of liens, in each case, as Lender ~~be obligated to make disbursements~~ may reasonably require. The excess, if any, of the Net Proceeds ~~in excess of an amount equal to~~ and the ~~costs actually incurred from time to time for work in place as part~~ remaining balance, if any, 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~~ Deficiency deposited 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~~ after 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~~Section 4.4(e), and the receipt by Lender ~~receives~~ of evidence satisfactory to Lender that ~~the~~ all costs of incurred in connection with the Restoration have been paid in ~~full or will~~ full, shall be remitted by Lender to Borrower, provided no Event of Default shall have occurred and shall be continuing. (f) All reasonable out-of-pocket costs and expenses incurred by Lender in connection with any Restoration including reasonable attorneys’ fees and disbursements, shall be paid by Borrower within ten (10) days of Lender’s written request therefor. (g) Notwithstanding anything to the contrary set forth in ~~full out~~ this Agreement, including the provisions of Section 4.3 or Section 4.4, if the ~~Restoration Retainage~~Loan is included in a REMIC Trust and, ~~provided, however, that Lender will~~ immediately following a release ~~the~~ of any portion of the Lien of a Mortgage following a Casualty or Condemnation of a Property (but taking into account any proposed Restoration ~~Retainage being held with respect~~ of the remaining portion of such Property), the ratio of the Outstanding Principal Balance to the value of the remaining Properties is greater than 125% (such value to be determined, in Lender’s sole discretion, by any ~~contractor~~commercially reasonable method permitted to a REMIC Trust; and which shall exclude the value of personal property (other than fixtures) or going concern value, ~~subcontractor~~ if any), the Outstanding Principal Balance must be paid down (by application of the Net Proceeds or ~~materialman engaged~~ Award, as applicable, or if such amounts are not sufficient, by Borrower) by a “qualified amount” as that term is defined in the ~~Restoration~~ IRS Revenue Procedure 2010-30, as the same may be amended, replaced, supplemented or modified from time to time, unless Lender receives an opinion of counsel that if such amount is not paid, the applicable REMIC Trust will not fail to maintain its status as a REMIC Trust as a result 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 related release of ~~any~~ such portion of the ~~Restoration Retainage shall be approved by~~ Lien of such Mortgage. If and to the ~~surety company~~extent the preceding sentence applies, only such amount of the net Award or net Insurance Proceeds (as applicable), if any, ~~which has issued~~ in excess of the amount required to pay down the principal balance of the Loan may be released for purposes of Restoration or released to Borrower as otherwise expressly provided in Section 4.3 or Section 4.4. (h) In the event of foreclosure of a ~~payment~~ Mortgage, or ~~performance bond with respect~~ other transfer of title to a Property or Properties in extinguishment in whole or in part of the Debt, then all right, title and interest of Borrower in and to the ~~contractor, subcontractor~~ Policies that are not blanket Policies then in force concerning such Property or ~~materialman~~Properties and all proceeds payable thereunder shall thereupon vest in the purchaser at such foreclosure or Lender or other transferee in the event of such other transfer of title.

Appears in 1 contract

Samples: Loan Agreement (American Housing REIT Inc.)

Restoration. The following provisions shall apply in connection with the Restoration of the Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 each of (i) the fair market value of the Property as reasonably determined by Lender, and (ii) the 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 fair market value of the Property as reasonably determined by Lender and (ii) the rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such ~~land~~ land, and such taking does not materially impair the existing access to the Property; (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 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 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~~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 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 (assuming the affected portion of the Property is relet within a reasonable period after the date of such Casualty or Condemnation); (HG) 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~~ the expiration of the insurance coverage referred to in Section 7.1(a)(iii) above, (63) ~~months after~~ such time as may be required under applicable zoning law, ordinance, rule or regulation in order to repair and restore the ~~occurrence of~~ Property to the condition it was in immediately prior to such fire or other casualty or taking, or (34) the earliest date required for such completion under the terms of any ~~Major Leases, (4) such time as may be required under applicable Legal Requirements~~ Material Agreements or ~~(5) the expiration of the insurance coverage referred to in Section 7.1(a)(iii) above~~REA; (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 shall guaranty to Lender the lien-free completion by Borrower of the Restoration in accordance with the provisions of this Subsection 7.4(b); (JH) the Property and the use thereof after the Restoration will be in compliance with and permitted under any REA, any Material Agreements and all ~~applicable Legal Requirements~~Applicable Law; (KI) the Restoration shall be done and completed in an expeditious and diligent fashion and in compliance with any REA, any Material Agreements and all ~~applicable Legal Requirements; (L) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA~~Applicable Law; and (MJ) 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~~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 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.Loss

Appears in 1 contract

Samples: Loan Agreement (Priam Properties Inc.)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the Property~~any Property affected by a Casualty: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~shall~~ reasonably expected to be received in connection with any single Casualty event is less than the ~~Restoration~~ Casualty Threshold Amount, then, (i) if no Event of Default shall have occurred and ~~the costs of completing the Restoration shall~~ be ~~less than the Restoration Threshold~~continuing and, ~~the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all~~ within sixty (60) days of the ~~conditions set forth in Section 7.4(b)(i) are met and~~ date of the occurrence of such Casualty, Borrower delivers to Lender a written undertaking to (x) expeditiously commence and to satisfactorily complete with due diligence the Restoration of the affected Properties in accordance with the terms of this Agreement, then (A) if Net Proceeds are paid by the insurance company directly to Borrower subsequent to delivering such undertaking, such Net Proceeds may be retained by Borrower (for the avoidance of doubt, Net Proceeds received by Borrower prior to delivering such undertaking shall be immediately paid to Lender as required by Section 5.2), (B) if Net Proceeds are paid by the insurance company to Lender, such Net Proceeds will be disbursed by Lender to Borrower and (C) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of Section 5.4(c) or (y) substitute the Property subject to the Casualty event with a Substitute Property in accordance with the requirements of Section 2.4.2(a) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall be applied to the prepayment of the Debt in an amount equal to the Release Amount for such Property in accordance with Section 2.4.2(c), (D) Borrower shall prepay the Loan in an amount equal to the excess, if any, of the Release Amount for such Property over such Net Proceeds and (E) promptly following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, if any, Lender shall (x) release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (A) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (B) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (y) disburse to Borrower (A) in the case of a substitution of a Substitute Property for such Property, the Net Proceeds paid by the insurance company and (B) in the case of the payment of the Release Amount for such Property, the Net Proceeds paid by the insurance company in excess of the Release Amount for such Property, if any; provided that, during the continuance of a Cash Sweep Period, any such excess Net Proceeds shall instead be delivered to the Cash Collateral Subaccount and disbursed in accordance with Section 6.6.1 and Section 6.6.2. (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~are equal~~ reasonably expected to or be received in connection with any single Casualty event is greater than the ~~Restoration~~ Casualty Threshold ~~or the costs of completing the Restoration are equal to or greater than the Restoration Threshold~~Amount, ~~Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.~~ then, (i) ~~The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A)~~ if no Event of Default shall have occurred and be ~~continuing;~~ continuing and, within sixty (B60) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as days of the date of the occurrence of such ~~fire or other casualty or taking~~Casualty, ~~whichever~~ Borrower delivers to Lender a written undertaking to (x) expeditiously commence and to satisfactorily complete with due diligence the ~~case may be, shall remain in full force and effect during and after the completion~~ Restoration of the ~~Restoration~~affected Properties in accordance with the terms of this Agreement, ~~notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and~~ then (A) Borrower ~~furnishes~~ shall immediately deliver to Lender ~~evidence satisfactory~~ any Net Proceeds paid to Borrower as required by Section 5.2 and (B) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of and subject to the conditions of Section 5.4(d) or (y) substitute the Property subject to the Casualty event with a Substitute Property in accordance with the requirements of Section 2.4.2(a) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender ~~that all Tenants under Major Leases~~ any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall ~~continue~~ be applied to ~~operate their respective space at~~ the ~~Property after the completion~~ prepayment of the ~~Restoration;~~ Debt in an amount equal to the Release Amount for such Property in accordance with Section 2.4.2(c), (D) Borrower shall ~~commence~~ prepay the Loan in an amount equal to the excess, if any, of the Release Amount for the affected Properties over such Net Proceeds and (or E) promptly following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, if any, Lender shall ~~cause~~ (x) release the ~~commencement of~~affected Properties from the applicable Mortgage Documents and related Liens, provided, that (A) Borrower has delivered to Lender draft releases (and, in the ~~Restoration as soon as reasonably practicable (but~~ event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in ~~no event later than thirty (30) days after~~ addition to the ~~issuance of~~ affected Properties, such release shall be a ~~building permit with respect thereto~~partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall ~~diligently pursue~~ contain standard provisions protecting the ~~same to satisfactory completion in compliance~~ rights of Lender and (B) Borrower shall pay all costs, taxes and expenses associated with ~~all applicable Legal Requirements,~~ such release (including, without limitation, ~~all applicable Environmental Laws;~~ cost to file and record the release and Lender’s reasonable attorneys’ fees) and (Ey) ~~Lender shall be satisfied that any operating deficits which will be incurred with respect~~ disburse to Borrower (A) in the case of a substitution of a Substitute Property ~~as a result of the occurrence of any~~ for such ~~fire or other casualty or taking will be covered out of (1) the Net Proceeds~~Property, ~~(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~~ paid 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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, company 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~~ case 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.Release

Appears in 1 contract

Samples: Loan Agreement (AG Mortgage Investment Trust, Inc.)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c~~If any Building is damaged (each a “Damaged Building” and collectively the “Damaged Buildings”), Landlord shall diligently repair that damage as soon as reasonably possible, at its expense, unless: (i) ~~hereof~~Landlord reasonably determines that the cost of repair is not covered by Landlord’s fire and extended coverage insurance (or, if Landlord is self-insuring, would not be covered by a standard “all-risk” policy, subject to standard exclusions), plus such additional amounts Tenant elects, at its option, to contribute, excluding however the ~~Net Proceeds~~ deductible (for which Tenant shall be ~~less than~~ responsible for Tenant’s Share); or (ii) Landlord reasonably determines that the ~~Restoration Threshold and the costs of completing the Restoration shall~~ Damaged Building(s) cannot, with reasonable diligence, be ~~less than the Restoration Threshold, the Net Proceeds will~~ fully repaired by Landlord (or cannot be ~~disbursed by Lender to Borrower upon receipt, provided that all~~ safely repaired because of the ~~conditions set forth~~ presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) within two hundred seventy (270) days after the date of the damage; or (iii) the damage occurs during the final twelve (12) months of the Term with respect to the Damaged Building(s). Should Landlord elect not to repair the damage for one of the preceding reasons, Landlord shall so notify Tenant in ~~Section 7.4(b)(i~~writing within sixty (60) ~~are met~~ days after the damage occurs and ~~Borrower delivers~~ this Lease shall terminate with respect to ~~Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence~~ the ~~Restoration in accordance with~~ Damaged Building(s) only as of the ~~terms~~ date of ~~this Agreement~~that notice. (b) ~~Subject~~ Unless Landlord elects to ~~Section 7.4(c~~terminate this Lease with respect to the Damaged Building(s) ~~hereof~~in accordance with subsection (a) above, this Lease shall continue in effect for the remainder of the Term with respect to the Damaged Building(s) and Landlord shall promptly notify Tenant in writing of Landlord’s election to restore the Damaged Building(s) and of the time Landlord estimates to complete such restoration; provided that so long as Tenant is not in default under this Lease beyond any applicable cure period, if the ~~Net Proceeds are equal~~ damage is so extensive that Landlord reasonably determines that the Damaged Building(s) cannot, with reasonable diligence, be repaired by Landlord (or cannot be safely repaired because of the presence of hazardous factors, earthquake faults, and other similar dangers) so as to ~~or greater than~~ allow Tenant’s substantial use and enjoyment of the ~~Restoration Threshold~~ Premises within two hundred seventy (270) days after the date of damage, then Tenant may elect to terminate this Lease with respect to the Damaged Building(s) by written notice to Landlord within the sixty (60) day period stated in subsection (a). To the extent space is available in Landlord’s portfolio to satisfy Tenant’s temporary space requirements during any period of restoration of any Damaged Building(s), Landlord shall make such space available to Tenant at a fair market rental rate. (c) Commencing three (3) business days following the date of any damage to any of the Buildings, and ending on the sooner of the date the damage is repaired or the ~~costs~~ date this Lease is terminated, the rental to be paid under this Lease shall be abated in the same proportion that the floor area of ~~completing~~ the ~~Restoration are equal~~ Damaged Building that is rendered unusable by the damage from time to time bears to the total floor area of the Damaged Building. (d) Notwithstanding the provisions of subsections (a), (b) and (c) of this Section, and subject to the provisions of Section 10.5 above, the cost of any repairs shall be borne by Tenant, and Tenant shall not be entitled to rental abatement or ~~greater than~~ termination rights, if the ~~Restoration Threshold~~damage is due to the fault or neglect of Tenant or its employees, ~~Lender shall make~~ subtenants, invitees or representatives, but only to the ~~Net Proceeds available for the Restoration in accordance with~~ extent such damage is not covered by a standard policy of “all risk” insurance (whether or not Landlord is self-insuring). In addition, the provisions of this Section ~~7.4~~shall not be deemed to require Landlord to repair any improvements or fixtures that Tenant is obligated to repair or insure pursuant to any other provision of this Lease. (ie) ~~The Net Proceeds~~ Tenant shall ~~be made available for Restoration provided that each~~ fully cooperate with Landlord in removing Tenant’s personal property and any non-structured debris from the Damaged Building(s) to facilitate all inspections of the Damaged Building(s) and the making of any repairs. Notwithstanding anything to the contrary contained in this Lease, if Landlord in good faith believes there is a risk of injury to persons or damage to property from entry into the applicable Building following ~~conditions~~ any damage or destruction thereto, Landlord may restrict entry into the Building by Tenant, its employees, agents and contractors in a non-discriminatory manner, without being deemed to have violated Tenant’s rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the Building. Upon request, Landlord shall consult with Tenant to determine if there are ~~met:~~ safe methods of entry into the Building solely in order to allow Tenant to retrieve files, data in computers, and necessary inventory, subject however to all indemnities and waivers of liability from Tenant to Landlord contained in this Lease and any additional indemnities and waivers of liability which Landlord may require. If damage or destruction rendering any Building unusable occurs during the final twelve (A12) ~~no Event~~ months of ~~Default~~ the Term of the Phase of which such Building is a part, or during the final twelve (12) months of any extension period thereof, which cannot be repaired within one hundred twenty (120) days following such damage or destruction, Tenant shall have ~~occurred and be continuing; (B) (1) in~~ the ~~event~~ option to terminate the ~~Net Proceeds are insurance proceeds, less than thirty percent (30%) of each of (i) fair market value of the Property~~ Lease 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the ~~Property; (C) Leases demising in the aggregate a percentage amount equal~~ applicable Building by providing Landlord written notification of Tenant’s election to or greater than 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, 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 terminate within thirty (30) days after the ~~issuance~~ damage occurs. For all purposes of ~~a building permit with respect thereto)~~ this Section 11.1, damage to the parking areas and access to any Building shall ~~diligently pursue~~ be deemed damage to the ~~same to satisfactory completion in compliance with all applicable Legal Requirements, including, without limitation, all applicable Environmental Laws;~~Building. (Ef) ~~Lender shall be satisfied that any operating deficits which will be incurred~~ In the event this Lease is terminated pursuant to Section 11.l with respect to ~~the Property as a result of the occurrence of any such fire~~ one or ~~other casualty or taking will be covered out of (1) the Net Proceeds~~more Buildings only, ~~(2) the insurance coverage referred~~ Tenant’s obligation to ~~in Section 7.1(a)(iii) above, or (3) by other funds of Borrower; (F) Lender~~ pay Basic Rent 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted decrease by the ~~terms~~ amount of the ZLDA; 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 Basic 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 payable 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~~Building(s). ~~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~~ This amount 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~~ product of the ~~Restoration~~Basic Rent for the Phase in which such Building(s) exists multiplied by a fraction, ~~as certified by~~ the ~~Casualty Consultant, minus~~ numerator of which is the ~~Restoration Retainage. The term “Restoration Retainage” as used in this Subsection 7.4(b) shall mean an amount equal to 10%~~ floor area of the ~~costs actually incurred~~ Building(s) for ~~work in place as part~~ which the Lease has terminated and the denominator of which is the floor area 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 materialmanPhase.

Appears in 1 contract

Samples: Sublease Agreement (Palm Inc)

Restoration. The following provisions shall apply in connection with the Restoration of the Property: (a) Subject to Section 7.4(c) hereof, if the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with Notwithstanding the provisions of ~~this~~ Section ~~7.4.~~6.1.D above, if, in Lender's reasonable judgment, the 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 of, 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: (i) The ~~Net~~ insurance Proceeds ~~shall be made available for Restoration provided that each~~ held by Lender in respect of the ~~following conditions are met: (A) no Event~~ applicable casualty equal or exceed such estimated cost of ~~Default shall have occurred~~ effecting such repair and restoration, or such portion thereof as then remains to be ~~continuing~~completed and paid for or Borrower provides evidence satisfactory to Lender that Borrower has funds available to pay any shortfall, and, if required by Lender, escrows such funds with Lender for disbursement in accordance with the requirements of Section 6.1.F; (~~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~~The Management Agreement shall remain in full force and effect and all material Leases, 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may beif any, shall remain in full force and effect, and no tenant thereunder shall be entitled to cancel or terminate its Lease as a consequence of such casualty; (iii) 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; (iv) The Work will, in Lender's reasonable judgment, be completed on or prior to May 31, 2000; (v) There is in force and effect ~~during~~ for the benefit of Borrower and ~~after~~ 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 ~~Restoration, notwithstanding the occurrence of any such Casualty~~ Work or ~~Condemnation, whichever the case may be, and~~ Borrower ~~furnishes to Lender~~ provides evidence satisfactory to Lender that Borrower has funds available to pay all ~~Tenants~~ interest and other sums due and payable under ~~Major Leases shall continue to operate their respective space at~~ the Note, this Agreement and the other Loan Documents, as well as all other expenses of the Property ~~after~~ during such period and, if required by Lender, escrows such funds with Lender for application to the ~~completion~~ payment of ~~the Restoration~~such obligations as they come due; (Dvi) ~~Borrower shall commence~~ 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 (~~or shall cause the commencement of~~vii) 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 The Work can be effected in compliance with all applicable ~~Legal Requirements~~laws and Borrower has obtained all licenses, ~~including~~permits, ~~without limitation,~~ consents and approvals from all applicable ~~Environmental Laws; (E) Lender shall be satisfied that any operating deficits which will be incurred with respect~~ governmental authorities or private parties required 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 permit Borrower to ~~deliver a REMIC Opinion in connection therewith. (ii) The Net Proceeds shall be held by Lender and~~effect such restoration and repair and to use, ~~until disbursed in accordance with~~ operate and occupy the ~~provisions of this Section 7.4(b), shall constitute additional security for the Debt~~ repaired and ~~other obligations under this Agreement, the Security Instrument, the Note and the other Loan Documents. The Net Proceeds~~ restored premises upon completion thereof (other than those which will issue in the ~~Rent Loss Proceeds~~ordinary course upon completion) and that the same are in full force and effect. Lender shall ~~be disbursed by Lender to, or as directed by, Borrower from time~~ have no obligation to ~~time during~~ make such insurance Proceeds available to pay for the ~~course of the Restoration, upon receipt of evidence satisfactory to Lender that~~ Work if (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~~ Loan shall have been ~~paid for in full~~accelerated and the principal and accrued interest owing on the Loan have become due and payable, ~~and~~ or (B) there shall 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~~ or Incipient Default other than an Incipient Default which is susceptible to ~~settle or adjust any claims made under the Policies in the event of a Casualty~~cure and as to which Borrower is diligently pursuing such cure. (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 1 contract

Samples: Loan Agreement (Servico Market Center Inc)

Restoration. ~~The following~~ 10.17.1 Unless the provisions of Clause 10.17.2 apply, any Net Award in respect of any Casualty or the Partial Compulsory Purchase shall ~~apply~~ be collected by the Tenant to reimburse Tenant for its costs incurred in ~~connection with~~ restoring the Premises. Tenant shall be obligated to restore the Premises as close as possible to its value, condition and character immediately prior to such event (assuming the Premises to have been in the condition required by this Lease). 10.17.2 If (i) the Premises are so destroyed or damaged by an Insured Risk such that the insurers are willing to make one or more lump sum payments of insurance proceeds in advance of reinstatement being paid for and completed, or (ii) the proceeds from any Partial Compulsory Purchase are in excess of E500,000, then, the Landlord or Lender may hold the entire Net Award in a fund (the "RESTORATION FUND") and Landlord or Lender shall disburse amounts from the Restoration of the Property: (a) Subject to Section 7.4(c) hereof, if the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund in accordance with the ~~terms of this Agreement.~~following conditions: (bi) ~~Subject~~ prior to ~~Section 7.4(c~~commencement of restoration, (A) ~~hereof~~the architects, if contracts, contractors, plans and specifications and a budget for the ~~Net Proceeds~~ restoration shall have been reviewed with the Landlord, and (B) the Landlord shall be provided with acceptable performance and payment bonds which insure satisfactory completion of and payment for the restoration, are ~~equal~~ in an amount and form and with a surety reasonably acceptable to the Landlord taking into account market standards, and name the Landlord as additional co-beneficiary or ~~greater~~ be assigned to Landlord; (ii) at the time of any payment, no Material Lease Default on the part of the Tenant shall exist and no liens in favour of workmen that have arisen through the conduct of work on the Premises (other than those liens that arise automatically under the ~~Restoration Threshold or~~ Law) shall have been filed against any of the Premises and remain undischarged; (iii) at the time of any payment, the Tenant is not declared bankrupt nor has the application for bankruptcy been rejected with respect to the Tenant due to the lack of funds sufficient for covering the costs of ~~completing~~ the ~~Restoration are equal~~ bankruptcy proceeding; (iv) payments shall be made from time to ~~or greater than~~ time in an amount not exceeding the ~~Restoration Threshold~~cost of the work completed since the last disbursement, ~~Lender shall make~~ upon receipt of (A) architects' certificates showing the ~~Net Proceeds available for~~ stage of completion and the ~~Restoration~~ estimated total cost of completion) that the work to date has been performed in a good and workmanlike manner in accordance with the ~~provisions~~ contracts, plans and specifications, (B) contractors' and subcontractors' statements as to completed work and the cost thereof for which payment is requested, and (C) paid receipts so that the Landlord and Landlord's construction consultant can verify in their reasonable discretion that the amounts disbursed from time to time are represented by work that is completed, in place and free from any material technical defects and clear from any third party claims. Landlord shall cause its construction consultant to provide such a verification (or objection) within ten (10) Working Days of the date all documentation required to be delivered to Landlord and its construction consultant under this ~~Section 7.4~~clause (iv) being delivered and no such objection may be based upon compliance by Tenant with the documentation approved by Landlord pursuant to Clause 10.17.2(i). (iv) ~~The Net Proceeds~~ each request for payment shall be ~~made available for Restoration provided that each~~ accompanied by a certificate from the Tenant, signed by an authorised representative of the ~~following conditions are met: (A) no Event~~ Tenant, describing the work for which payment is requested, stating the cost incurred in connection therewith, and stating that the Tenant has not previously received payment for such work and, upon completion of ~~Default shall have occurred~~ the work, also stating that the work has been fully completed and ~~be continuing~~complies with the applicable requirements of this Lease; (Bvi) the Landlord shall not unreasonably withhold or delay any payment under this Clause 10.17.2 or the granting or withholding of any consents or approvals with respect to the reinstatement; and (1vii) 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 Landlord may retain ten percent (10%) of each of (i) the fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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)~~ Award until 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 work is fully completed. So long 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 then exists, ~~(b) Borrower promptly and with commercially reasonable diligence negotiates a settlement of~~ any ~~such claims and (c)~~ amounts so retained shall be paid to Tenant or the ~~insurer with respect to the Policy under which such claim is brought has not raised any act~~ general contractor, as applicable, following final completion of the ~~insured~~ restoration work in compliance with this Lease and receipt by Landlord of all documentation Landlord reasonably requires to verify same. 10.17.3 In the event Landlord's construction consultant objects as ~~a defense to the payment~~ provided in Clause 10.17.2 (iv)(C) and Tenant disagrees with such determination by giving Landlord and Landlord's construction consultant written notice of such ~~claim. If an Event~~ disagreement within three (3) Working Days of ~~Default exists~~being notified in writing of such objection, ~~Lender shall~~then, ~~at its election~~a representative of Tenant, ~~have the exclusive right to settle or adjust any claims made under the Policies~~ a representative of Landlord and Landlord's construction consultant shall meet (in ~~the event of a Casualty. (iv~~person and/or by telephone) 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.within seven

Appears in 1 contract

Samples: Lease Agreement (Corporate Property Associates 17 - Global INC)

Restoration. The following provisions shall apply in connection with the Restoration of the Property: (a1) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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. (b2) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (Aa) no Event of Default shall have occurred and be continuing; (Bb) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (Cc) 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 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 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;; 41458-110/JANAF Shopping Yard (VA) (Dd) 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; (Ee) 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; (Ff) 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; (Gg) Lender shall be satisfied ~~that,~~ that (I) 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~~Condemnation and (II) Restoration of the Improvements on the Land (as each existed immediately prior to the applicable casualty or condemnation (with such changes to the Improvements as may be reasonably acceptable to Lender (taking into account subsection (I) above))) is permitted under applicable Legal Requirements and the Property Documents; (Hh) 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 ~~Major Leases~~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; (Ii) 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); (Jj) the Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal ~~Requirements;~~Requirements and the Property Documents; LOAN AGREEMENT – Page 82 41458-110/JANAF Shopping Yard (VA) (Kk) the Restoration shall be done and completed in an expeditious and diligent fashion and in compliance with all applicable Legal ~~Requirements~~Requirements and the Property Documents; (Ll) ~~Lender shall be satisfied,~~ the Property Documents will remain in ~~its sole~~ full force and ~~absolute discretion, that~~ effect during and after the Restoration and a Property Document Event shall not occur as a result of the ~~Property will not be limited or restricted by the terms of the ZLDA~~applicable Casualty, Condemnation and/or Restoration; and (Mm) 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 1 contract

Samples: Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c~~Landlord (or Lender if required by any Mortgage) ~~hereof, if~~ shall hold Net Award in excess of $300,000 in a fund (the ~~Net Proceeds shall be less than~~ "Restoration Fund") and disburse amounts from the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund only in accordance with the terms of this Agreement. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.following conditions: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ prior to commencement of ~~the following conditions are met:~~ restoration, (A) the architects, contracts, contractors, plans and specifications for the restoration shall have been approved by Landlord, and (B) Landlord and Lender shall be provided with acceptable performance and payment bonds which insure satisfactory completion of and payment for the restoration, are in an amount and form and have a surety reasonably acceptable to Landlord, and name Landlord and Lender as additional dual obligees; (ii) at the time of any disbursement, no Event of Default shall exist and no mechanics' or materialmen's liens shall have ~~occurred~~ been filed against any of the Leased Premises and ~~be continuing~~remain undischarged; (Biii) ~~(1)~~ disbursements shall be made from time to time in an amount not exceeding the ~~event~~ cost of the ~~Net Proceeds are insurance proceeds~~work completed since the last disbursement, ~~less than thirty percent (30%) of each~~ upon receipt of (iA) (iv) ~~fair market value~~ each request for disbursement shall be accompanied by a certificate of Tenant, signed by the president or a vice president of Tenant, describing the work for which payment is requested, stating the cost incurred in connection therewith, stating that Tenant has not previously received payment for such work and, upon completion of the ~~Property as reasonably determined by Lender~~work, ~~and (ii) rentable area of~~ also stating that the ~~Property~~ work has been ~~damaged, destroyed or rendered unusable as a result~~ fully completed and complies with the applicable requirements of ~~a Casualty or~~ this Lease; (2v) ~~in the event the Net Proceeds are condemnation proceeds, less than~~ Landlord may retain ten percent (10%) of ~~each~~ the restoration fund until the restoration is fully completed; (vi) if the Restoration Fund is held by Landlord, the Restoration Fund shall not be commingled with Landlord's other funds and shall bear interest at a rate agreed to by Landlord and Tenant; and (vii) such other reasonable conditions as Landlord or Lender may impose. (b) Prior to commencement of ~~(i)~~ restoration and at any time during restoration, if the ~~fair market value~~ estimated cost of completing the ~~Property~~ restoration work free and clear of all liens, as reasonably determined by ~~Lender and (ii) rentable area~~ Landlord, exceeds the amount of the ~~Property is taken~~Net Award available for such restoration, the amount of such ~~land is located along the perimeter or periphery of the Property~~excess shall, ~~no portion of the Improvements is located on such land and such taking does not materially impair the existing access~~ upon demand by Landlord, be paid by Tenant to Landlord to be added to the ~~Property; (C) Leases demising~~ Restoration Fund. Any sum so added by Tenant which remains in the ~~aggregate a percentage amount equal~~ Restoration Fund upon completion of restoration shall be refunded to ~~or greater than 75%~~ Tenant. For purposes of determining the ~~total rentable space in~~ source of funds with respect to the ~~Property which has been demised under executed and delivered Leases in effect as~~ disposition 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~~ funds remaining after the completion of restoration, the ~~Restoration, notwithstanding~~ Net Award shall be deemed to be disbursed prior to any amount added by Tenant. (c) If any sum remains in 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 Restoration Fund after ~~the~~ completion of the ~~Restoration; (D) Borrower~~ restoration and any refund to Tenant pursuant to Paragraph 19(b), such sum shall ~~commence (~~be retained by Landlord or, if required by a Note or Mortgage, paid by Landlord to a Lender. If such sum is paid to Lender, then Landlord shall use reasonable efforts to cause ~~the commencement of) the Restoration as soon as reasonably practicable (but~~ each installment of Basic Rent thereafter payable to be reduced in ~~no event later than thirty (30) days after the issuance of a building permit with respect thereto) and shall diligently pursue~~ the same amount as payments are reduced under any Note if the Loan corresponding to ~~satisfactory completion~~ such Note is reamortized to reflect such payment, in ~~compliance with all applicable Legal Requirements~~each case until such remaining sum has been applied in full or until the Term has expired, 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) 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 Major Leases, (4) such time as may be required under applicable Legal Requirements or (5) whichever occurs first. Upon 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 shall 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) Lender shall be satisfiedTerm, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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~~ remaining sum 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 not been so applied shall be ~~approved~~ retained by ~~the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor or materialman~~Landlord.

Appears in 1 contract

Samples: Lease Agreement (Corporate Property Associates 14 Inc)

Restoration. The following provisions shall apply in connection with the Restoration of the Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 each of (i) the fair market value of the Property as reasonably determined by Lender, and (ii) the 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 fair market value of the Property as reasonably determined by Lender and (ii) the rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such ~~land~~ land, and such taking does not materially impair the existing access to the Property; (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 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~~Restoration (other than Leases which by their terms would expire due to the passage of time and not as a result of the occurrence of such Casualty or Condemnation or other termination right exercisable by Borrower or any Tenant), 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~~Applicable Laws, in all material respects, including, without limitation, all applicable Environmental Laws; (E) Lender shall be satisfied that any operating ~~deficits~~ deficits, if any, 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 Major Leases, (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, 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 or taking; (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 shall guaranty to Lender the lien-free completion by Borrower of the Restoration in accordance with the provisions of this Subsection 7.4(b); (JG) the Property and the use thereof after the Restoration will be in compliance with and permitted under any Major Lease, any REA, any Material Agreements and all ~~applicable Legal Requirements~~Applicable Law; (KH) the Restoration shall be done and completed in an expeditious and diligent fashion and in compliance with any Major Lease, any REA, any Material Agreements and all ~~applicable Legal Requirements; (L) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA~~Applicable Law; and (MI) 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~~Requirements. (ii) ~~The~~ Subject to the terms of Section 7.4(a) above, 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~~ All such plans and specifications and all permits, licenses and approvals required or obtained in connection with the ~~Restoration~~Restoration shall be assigned to Lender as additional collateral for the Loan and Lender shall have the use of the same. 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~~Lender. All customary and 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~~ Section 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~~ Section 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~~ Section 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 such portion of 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 1 contract

Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)

Restoration. The following provisions shall apply in connection with the Restoration of the Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed ~~by Lender~~ to ~~Borrower upon receipt~~Borrower, provided that all of the conditions set forth in Section 7.4(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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, ~~Lender~~ Administrative Agent shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 ~~each of (i) fair market value~~ the total floor area of the ~~Property as reasonably determined by Lender, and (ii) rentable area of~~ Improvements on the Property has been damaged, destroyed or rendered unusable as a result of a such Casualty or (2) in the event the Net Proceeds are condemnation proceeds, less than ten percent (10%) of ~~each of (i)~~ the ~~fair market value of the Property as reasonably determined by Lender and (ii) rentable area of~~ 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 and such taking does not materially impair the existing access to the Property~~land; (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 delivered Leases in effect as of the date of the occurrence of ~~such fire~~ the applicable Casualty or ~~other casualty or taking~~Condemnation, whichever the case may be, shall remain in full force and effect during and after the completion of the ~~Restoration~~Restoration (other than Leases which automatically expire by their terms), 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~~ sixty (3060) 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~~completion; (E) ~~Lender~~ 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 ~~fire~~ Casualty or ~~other casualty or taking~~ 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) ~~Lender~~ Administrative Agent shall be satisfied that the Net Proceeds together with any other collateral, guaranties, any cash or cash equivalent deposited by Borrower with ~~Lender~~ or delivered by Borrower to Administrative Agent are sufficient to cover the cost of the Restoration; (G) ~~Lender~~ Administrative Agent shall be satisfied that, upon the completion of the Restoration, the ~~fair market value and cash flow~~ debt yield for the Property (which debt yield shall be determined by Administrative Agent in its reasonable discretion), shall be at least equal to the lesser of (1) (i) 6.25% during the initial term of the ~~Property will not be less than~~ Loan and the ~~fair market value~~ first Extension Period, (ii) 6.50% during the second Extension Period, and ~~cash flow~~ (iii) 6.75% during the third Extension Period and (2) the Debt Yield as of the ~~Property as the same existed~~ date immediately prior to the occurrence of the applicable Casualty or Condemnation; (H) ~~Lender~~ 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 Major Leases, (4)~~ such time as may be required under applicable Legal Requirements or (53) the expiration of the insurance coverage referred to in Section 7.1(a)(iii) above; (I) ~~Borrower~~ Administrative Agent shall ~~execute and deliver to Lender a~~ be satisfied that, upon the 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~~ Restoration, the ~~provisions of this Subsection 7.4(b)~~Debt Service Coverage Ratio, shall be at least 1.00:1.00; (J) the Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal ~~Requirements~~Requirements in all material respects and the Property Documents; (K) the Restoration shall be done and completed in an expeditious and diligent fashion and in compliance in all material respects with all applicable Legal ~~Requirements~~Requirements and the Property Documents; (L) ~~Lender shall be satisfied,~~ the Property Documents (other than those of a de minimis nature) will remain in ~~its sole~~ full force and ~~absolute discretion, that~~ effect during and after the Restoration and a Property Document Event shall not occur as a result of the ~~Property will not be limited or restricted by the terms of the ZLDA~~applicable Casualty, Condemnation and/or Restoration; and (M) ~~Lender~~ after a Securitization, Administrative Agent shall be satisfied that making the Net Proceeds available for Restoration shall be permitted pursuant to REMIC Requirements and, in that regard, ~~Lender~~ Administrative Agent may require Borrower to deliver a REMIC Opinion in connection therewith. (ii) The Net Proceeds shall be held by ~~Lender~~ Administrative Agent, for the benefit of Lenders 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~~ Administrative Agent to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence reasonably satisfactory to ~~Lender~~ 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 (1) are not being contested by Borrower in accordance with the terms hereof, (2) have not either been fully bonded to the reasonable satisfaction of ~~Lender~~ Administrative Agent and discharged of record or (3) in the alternative fully insured to the satisfaction of ~~Lender~~ Administrative Agent by the title company issuing the Title Insurance Policy. (iii) ~~All~~ With respect to any Casualty in excess of the Restoration Threshold, all plans and specifications required in connection with the Restoration shall be subject to prior review and acceptance in all respects by ~~Lender~~ Administrative Agent and by an independent consulting engineer selected by ~~Lender~~ Administrative Agent (the “Casualty Consultant”), such acceptance of the plans and specifications not to be unreasonably withheld, conditioned or delayed. ~~Lender~~ 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 ~~Lender~~ Administrative Agent and the Casualty ~~Consultant, such acceptance not~~ Consultant if the applicable contract is for an amount equal to ~~be unreasonably withheld~~ or ~~delayed~~greater than $3,000,000. All reasonable and actual out-of-pocket costs and expenses incurred by ~~Lender~~ 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 (i) all claims under the Policies which claims are less than the Settlement Threshold without Administrative Agent’s consent (provided, however, that Borrower shall consult with Administrative Agent with respect to any settlement discussions with any insurance companies) and (ii) all claims under the Policies which claims are equal or in excess of the Settlement Threshold jointly with ~~Lender~~Administrative Agent, provided ~~that~~ that, in each case, (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~~ 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. To the extent that the Deemed Approval Requirements are fully satisfied in connection with any Borrower request for Administrative Agent’s approval under this clause (iii) and Administrative Agent thereafter fails to respond, Administrative Agent’s approval shall be deemed given with respect to the matter for which approval was requested. (iv) In no event shall ~~Lender~~ 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~~ Section 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~~ 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~~ Section 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~~ Administrative Agent that the Restoration has been completed in accordance with the provisions of this ~~Subsection~~ Section 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~~ Administrative Agent receives evidence reasonably satisfactory to ~~Lender~~ 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 ~~Lender~~ 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 ~~Lender~~ 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 ~~Lender~~ Administrative Agent or by the title company insuring the lien of the Security Instrument. If reasonably required by ~~Lender~~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 (Brookfield DTLA Fund Office Trust Investor Inc.)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the~~ any Individual Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that ~~all~~ no Event of ~~the conditions set forth in Section 7.4(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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section ~~7.4~~7.4(b). (i) The Net Proceeds shall be made available 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 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 fair market value of the applicable Individual Property as reasonably determined by Lender and (ii) rentable area of the applicable Individual Property is taken, such land is located along the perimeter or periphery of the applicable Individual Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the applicable Individual Property; (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 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 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 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, upon the completion~~ that Restoration of the ~~Restoration,~~ Improvements related to such applicable Individual Property on the ~~fair market value and cash flow of the~~ Land related to such applicable Individual Property ~~will not be less than the fair market value and cash flow of the Property~~ (as ~~the same~~ each existed immediately prior to the applicable ~~Casualty~~ casualty or ~~Condemnation~~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 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 ~~Major Leases~~Leases and the Property Documents, 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) 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 7.4(b)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, the Property Documents, 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, the Property Documents, the PILOT Leases and/or the PILOT Documents, as applicable; (L) ~~Lender~~ 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 ~~satisfied~~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 PILOT Leases and/or the PILOT Documents, as applicable, will remain in ~~its sole~~ full force and ~~absolute discretion, that~~ effect during and after the Restoration and a Property Document Event shall not occur as a result of the ~~Property will not be limited or restricted by the terms of the ZLDA~~applicable Casualty, Condemnation and/or Restoration; and (MN) 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~~ Xxxxxx 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~~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 ~~Lender~~ Xxxxxx and by an independent consulting engineer selected by ~~Lender~~ Xxxxxx (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~~ Xxxxxx and the Casualty Consultant~~, such acceptance not to be unreasonably withheld or delayed~~. 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 ~~Borrower~~Xxxxxxxx. Borrower shall have the right to settle all claims under the Policies jointly with ~~Lender~~Xxxxxx, 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 ~~Lender~~ Xxxxxx 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~~ Xxxxxx 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 1 contract

Samples: Loan Agreement (Industrial Logistics Properties Trust)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the Property~~any Property or Properties affected by a Casualty: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~shall~~ reasonably expected to be received in connection with any single Casualty event is less than the ~~Restoration~~ Casualty Threshold Amount, then, (i) if no Event of Default shall have occurred and ~~the costs of completing the Restoration shall~~ be ~~less than the Restoration Threshold~~continuing and, ~~the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all~~ within sixty (60) days of the ~~conditions set forth in Section 7.4(b)(i) are met and~~ date of the occurrence of such Casualty, Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration of the affected Properties in accordance with the terms of this Agreement, then (A) if Net Proceeds are paid by the insurance company directly to Borrower subsequent to delivering such undertaking, such Net Proceeds may be retained by Borrower (for the avoidance of doubt, Net Proceeds received by Borrower prior to delivering such undertaking shall be immediately paid to Lender as required by Section 5.2), (B) if Net Proceeds are paid by the insurance company to Lender, such Net Proceeds will be disbursed by Lender to Borrower and (C) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of Section 5.4(c) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall be applied to the prepayment of the Debt in accordance with Section 2.4.3(c), (D) Borrower shall prepay the Loan in an amount equal to the positive difference between such Net Proceeds and the Allocated Loan Amount for the affected Properties, together with all interest and other amounts required to be paid in connection therewith under Section 2.4.5, and (E) following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, Lender shall release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (x) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees). (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~are equal~~ reasonably expected to or be received in connection with any single Casualty event is greater than the ~~Restoration~~ Casualty Threshold ~~or the costs of completing the Restoration are equal to or greater than the Restoration Threshold~~Amount, ~~Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.~~ then, (i) ~~The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A)~~ if no Event of Default shall have occurred and be ~~continuing;~~ continuing and, within sixty (B60) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as days of the date of the occurrence of such ~~fire or other casualty or taking~~Casualty, ~~whichever~~ Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the ~~case may be, shall remain in full force and effect during and after the completion~~ Restoration of the ~~Restoration~~affected Properties in accordance with the terms of this Agreement, ~~notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and~~ then (A) Borrower ~~furnishes~~ shall immediately deliver to Lender ~~evidence satisfactory~~ any Net Proceeds paid to Borrower as required by Section 5.2 and (B) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of and subject to the conditions of Section 5.4(d) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender ~~that all Tenants under Major Leases~~ any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall ~~continue~~ be applied to ~~operate their respective space at~~ the ~~Property after the completion~~ prepayment of the ~~Restoration;~~ Debt in accordance with Section 2.4.3(c), (D) Borrower shall prepay the Loan in an amount equal to the positive difference between such Net Proceeds and the Allocated Loan Amount for the affected Properties, together with all interest and other amounts required to be paid in connection therewith under Section 2.4.5, and (E) following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, Lender shall release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (x) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees). (c) If Borrower elects to undertake the Restoration of a Property or Properties pursuant to Section 5.4(a), (i) Borrower shall commence ~~(or shall cause the commencement of)~~ the Restoration as soon as reasonably practicable (but in no event later than ~~thirty~~ ninety (3090) days after ~~the issuance of a building permit with respect thereto~~such Casualty occurs) and shall diligently pursue the same to satisfactory ~~completion~~ completion; (ii) Borrower shall cause the affected Property and the use thereof after the Restoration to be in compliance with and permitted under all applicable Legal Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (iii) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal ~~Requirements~~Requirements and the Renovation Standards and (iv) Borrower shall deliver, ~~including~~or cause to be delivered, ~~without limitation~~to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, ~~all applicable Environmental Laws;~~which budget shall be reasonably acceptable to Lender. (Ed) If Borrower elects to undertake the Restoration of a Property or Properties pursuant to Section 5.4(b), the following provisions shall apply: (i) the Net Proceeds shall be made available to Borrower for Restoration upon the determination of Lender that the following conditions are met: (i) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than ninety (90) days after such Casualty occurs) and shall diligently pursue the same to satisfactory completion; (ii) Lender shall be satisfied that any operating ~~deficits~~ deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the ~~Property~~ Properties as a result of the occurrence of ~~any such fire or other casualty or taking~~ the Casualty, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section ~~7.1(a)(iii) above~~5.1.1(a)(ii), if applicable, 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; (Hiii) 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, as extended pursuant to Section 2.7, (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 ~~Major Leases~~Lease, (43) such time as may be required under applicable Legal Requirements or (54) six (6) months prior to the expiration of the insurance coverage referred to in Section ~~7.1(a)(iii) above;~~5.1.1 (Ia) (ii); (iv) Borrower shall ~~execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender and its counsel pursuant to~~ cause 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 7.4(b); (J) the~~ affected Property and the use thereof after the Restoration ~~will~~ to be in compliance with and permitted under all applicable Legal ~~Requirements;~~ Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (Kv) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal ~~Requirements;~~ Requirements and the Renovation Standards; (Lvi) 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 ~~satisfied, in its sole~~ reasonably acceptable to Lender and ~~absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; and~~ (Mvii) ~~Lender shall be satisfied that making~~ the Net Proceeds ~~available for Restoration shall be permitted pursuant~~ together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to ~~REMIC Requirements and, in that regard, Lender may require Borrower to deliver a REMIC Opinion in connection therewith~~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 ~~7.4(b~~5.4(d), 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~~ Properties 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 the prior ~~review and acceptance in all respects by~~ approval of 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~~ Restoration, as well as the contracts under which they have been engaged, shall be subject to ~~prior review and acceptance by~~ the approval of 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~~ recovering, holding and advancing the Net Proceeds ~~available~~ for the Restoration including, without limitation, reasonable ~~counsel~~ attorneys’ fees and disbursements and the Casualty Consultant’s ~~fees~~fees and disbursements, 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~~ less the ~~Restoration~~ Casualty Retainage. The term “~~Restoration~~ Casualty Retainage” shall mean, as ~~used~~ to each contractor, subcontractor or materialman engaged in ~~this Subsection 7.4(b) shall mean~~ 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 ~~such time as~~ the ~~Casualty Consultant certifies to Lender that Net Proceeds representing 50% of the required~~ Restoration ~~have~~ has 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~~completed. The ~~Restoration~~ Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this ~~Subsection 7.4(b~~Section 5.4(d), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The ~~Restoration~~ 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 7.4(b~~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 and quasi-governmental authorities~~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~~ Casualty Retainage, ; provided, however, that Lender will release the portion of the ~~Restoration~~ Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which (x) the Casualty Consultant certifies to Lender that ~~the~~ such contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of ~~the~~ such contractor’s, subcontractor’s or materialman’s contract, ~~and~~ (y) 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 (z) Lender receives an endorsement to the Title Insurance Policy insuring the ~~lien~~ continued priority of the ~~Security Instrument~~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 ~~Restoration~~ 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: Loan Agreement (Invitation Homes Inc.)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the Property~~any Property affected by a Casualty: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~shall~~ reasonably expected to be received in connection with any single Casualty event is less than the ~~Restoration~~ Casualty Threshold Amount, then, (i) if no Event of Default shall have occurred and ~~the costs of completing the Restoration shall~~ be ~~less than the Restoration Threshold~~continuing and, ~~the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all~~ within sixty (60) days of the ~~conditions set forth in Section 7.4(b)(i) are met and~~ date of the occurrence of such Casualty, Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration of the affected Properties in accordance with the terms of this Agreement, then (A) if Net Proceeds are paid by the insurance company directly to Borrower subsequent to delivering such undertaking, such Net Proceeds may be retained by Borrower (for the avoidance of doubt, Net Proceeds received by Borrower prior to delivering such undertaking shall be immediately paid to Lender as required by Section 5.2), (B) if Net Proceeds are paid by the insurance company to Lender, such Net Proceeds will be disbursed by Lender to Borrower and (C) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of Section 5.4(c) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall be applied to the prepayment of the Debt in accordance with Section 2.4.2(c), (D) Borrower shall prepay the Loan in an amount equal to the positive difference between such Net Proceeds and the Allocated Loan Amount for the affected Properties, together with all interest and other amounts required to be paid in connection therewith under Section 2.4.4, and (E) following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, Lender shall release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (x) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees). (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds ~~are equal~~ reasonably expected to or be received in connection with any single Casualty event is greater than the ~~Restoration~~ Casualty Threshold ~~or the costs of completing the Restoration are equal to or greater than the Restoration Threshold~~Amount, ~~Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.~~ then, (i) ~~The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A)~~ if no Event of Default shall have occurred and be ~~continuing;~~ continuing and, within sixty (B60) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as days of the date of the occurrence of such ~~fire or other casualty or taking~~Casualty, ~~whichever~~ Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the ~~case may be, shall remain in full force and effect during and after the completion~~ Restoration of the ~~Restoration~~affected Properties in accordance with the terms of this Agreement, ~~notwithstanding the occurrence of any such Casualty or Condemnation, whichever the case may be, and~~ then (A) Borrower ~~furnishes~~ shall immediately deliver to Lender ~~evidence satisfactory~~ any Net Proceeds paid to Borrower as required by Section 5.2 and (B) Borrower shall conduct the Restoration of the affected Properties in accordance with the terms of and subject to the conditions of Section 5.4(d) and (ii) if an Event of Default shall have occurred and be continuing or Borrower fails to deliver such an undertaking to Lender, then (A) Lender may retain any Net Proceeds received by it, (B) Borrower shall immediately deliver to Lender ~~that all Tenants under Major Leases~~ any Net Proceeds paid to Borrower as required by Section 5.2, (C) such Net Proceeds shall ~~continue~~ be applied to ~~operate their respective space at~~ the ~~Property after the completion~~ prepayment of the ~~Restoration;~~ Debt in accordance with Section 2.4.2(c), (D) Borrower shall prepay the Loan in an amount equal to the positive difference between such Net Proceeds and the Allocated Loan Amount for the affected Properties, together with all interest and other amounts required to be paid in connection therewith under Section 2.4.4, and (E) following Borrower’s written request and receipt by Lender of the Net Proceeds and payment by Borrower of the amounts set forth in clause (D) above, Lender shall release the affected Properties from the applicable Mortgage Documents and related Liens, provided, that (x) Borrower has delivered to Lender draft releases (and, in the event any of the Mortgages and the Assignments of Leases and Rents applicable to any of the affected Properties encumber other Property(ies) in addition to the affected Properties, such release shall be a partial release that relates only to the affected Property(ies) and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such affected Properties are located and shall contain standard provisions protecting the rights of Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees). (c) If Borrower elects to undertake the Restoration a Property or Properties pursuant to Section 5.4(a), (i) Borrower shall commence ~~(or shall cause the commencement of)~~ the Restoration as soon as reasonably practicable (but in no event later than ~~thirty~~ ninety (3090) days after ~~the issuance of a building permit with respect thereto~~such Casualty occurs) and shall diligently pursue the same to satisfactory ~~completion~~ completion; (ii) Borrower shall cause the affected Property and the use thereof after the Restoration to be in compliance with and permitted under all applicable Legal Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (iii) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal ~~Requirements~~Requirements and the Renovation Standards and (iv) Borrower shall deliver, ~~including~~or cause to be delivered, ~~without limitation~~to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, ~~all applicable Environmental Laws;~~which budget shall be reasonably acceptable to Lender. (Ed) If Borrower elects to undertake the Restoration of a Property or Properties pursuant to Section 5.4(b), the following provisions shall apply: (i) the Net Proceeds shall be made available to Borrower for Restoration upon the determination of Lender that the following conditions are met: (A) Borrower shall commence the Restoration as soon as reasonably practicable (but in no event later than ninety (90) days after such Casualty occurs) and shall diligently pursue the same to satisfactory completion; (B) Lender shall be satisfied that any operating ~~deficits~~ deficits, including all scheduled payments of principal and interest under the Note, which will be incurred with respect to the ~~Property~~ Properties as a result of the occurrence of ~~any such fire or other casualty or taking~~ the Casualty, whichever the case may be, will be covered out of (1) the Net Proceeds, (2) the insurance coverage referred to in Section ~~7.1(a)(iii) above~~5.1.1(a)(ii), if applicable, 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; (HC) 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 Initial Maturity Date, as extended pursuant to Section 2.8, (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 ~~Major Leases~~Lease, (43) such time as may be required under applicable Legal Requirements or (54) six (6) months prior to the expiration of the insurance coverage referred to in Section ~~7.1(a)(iii) above;~~5.1.1 (Ia) (ii); (D) Borrower shall ~~execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender and its counsel pursuant to~~ cause 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 7.4(b); (J) the~~ affected Property and the use thereof after the Restoration ~~will~~ to be in compliance with and permitted under all applicable Legal ~~Requirements;~~ Requirements and such Property, after Restoration, shall be of the same character as prior to such damage or destruction; (KE) the Restoration shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable Legal ~~Requirements;~~ Requirements and the Renovation Standards; (LF) 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 ~~satisfied, in its sole~~ reasonably acceptable to Lender and ~~absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; and~~ (MG) ~~Lender shall be satisfied that making~~ the Net Proceeds ~~available for Restoration shall be permitted pursuant~~ together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s discretion to ~~REMIC Requirements and, in that regard, Lender may require Borrower to deliver a REMIC Opinion in connection therewith~~cover the cost of the Restoration. (ii) The Net Proceeds shall be held by Lender in the Casualty and Condemnation Subaccount and, until disbursed in accordance with the provisions of this Section ~~7.4(b~~5.4(d), 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~~ Properties 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 the prior ~~review and acceptance in all respects by~~ approval of 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~~ Restoration, as well as the contracts under which they have been engaged, shall be subject to ~~prior review and acceptance by~~ the approval of 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~~ recovering, holding and advancing the Net Proceeds ~~available~~ for the Restoration including, without limitation, reasonable ~~counsel~~ attorneys’ fees and disbursements and the Casualty Consultant’s ~~fees~~fees and disbursements, 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~~ less the ~~Restoration~~ Casualty Retainage. The term “~~Restoration~~ Casualty Retainage” shall mean, as ~~used~~ to each contractor, subcontractor or materialman engaged in ~~this Subsection 7.4(b) shall mean~~ 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 ~~such time as~~ the ~~Casualty Consultant certifies to Lender that Net Proceeds representing 50% of the required~~ Restoration ~~have~~ has 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~~completed. The ~~Restoration~~ Casualty Retainage shall in no event, and notwithstanding anything to the contrary set forth above in this ~~Subsection 7.4(b~~Section 5.4(d), be less than the amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in the Restoration. The ~~Restoration~~ 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 7.4(b~~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 and quasi-governmental authorities~~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~~ Casualty Retainage, ; provided, however, that Lender will release the portion of the ~~Restoration~~ Casualty Retainage being held with respect to any contractor, subcontractor or materialman engaged in the Restoration as of the date upon which (x) the Casualty Consultant certifies to Lender that ~~the~~ such contractor, subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions of ~~the~~ such contractor’s, subcontractor’s or materialman’s contract, ~~and~~ (y) 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 (z) Lender receives an endorsement to the Title Insurance Policy insuring the ~~lien~~ continued priority of the ~~Security Instrument~~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 ~~Restoration~~ 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: Loan Agreement (Colony Starwood Homes)

Restoration. ~~The following provisions shall apply in connection with~~ If Mortgagee releases funds from the ~~Restoration~~ Collateral ----------- Account to the Company for restoration of any of the ~~Property: (a) Subject~~ Mortgaged Property pursuant to Section ~~7.4(c~~5(f) ~~hereof~~or Section 9 of this Mortgage, ~~if the Net Proceeds~~ then such restoration shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration performed only in accordance with the terms of this Agreement. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.following conditions: (i) ~~The Net Proceeds~~ prior to the disbursement by Mortgagee of restoration funds from the Collateral Account and prior to the commencement of any restoration, the plans and specifications for such restoration, and a written statement detailing the budgeted costs, shall be ~~made available for Restoration provided~~ submitted to and approved by Mortgagee which approval shall not be unreasonably withheld or delayed; (ii) prior to making any advance of restoration funds, Mortgagee shall be satisfied that ~~each~~ the remaining restoration funds, together with the Company's own funds from insurance or otherwise, are sufficient to complete the restoration and to pay all related expenses, including interest on the Indebtedness and real estate taxes on the Premises, during restoration; (iii) at the time of any disbursement of the ~~following conditions are met:~~ restoration funds, (A) no Event of Default (as defined below) shall then have occurred, (B) no mechanics' or materialmen's liens shall have ~~occurred~~ been filed and remain undischarged, except those to be ~~continuing~~discharged by the disbursement of the requested restoration funds, provided that the Company may contest such lien subject to the same conditions as set forth in Section 4(d) of this Mortgage; (Biv) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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 disbursements shall be ~~satisfied that any operating deficits which will be incurred with respect~~ made from time 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~~ time 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 an amount not exceeding the cost of the ~~Restoration; (G) Lender shall be satisfied that~~work completed since the last disbursement, upon Mortgagee's receipt of reasonably satisfactory evidence from the ~~completion~~ Company (or its architect or contractor) of the ~~Restoration, the fair market value~~ stage of completion and ~~cash flow~~ of performance of the ~~Property will not be less than the fair market value~~ work in a good 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 Major Leases, (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 workmanlike manner 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 7.4(b)~~plans and specifications previously approved by Mortgagee; (Jv) ~~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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 approval of the plans and ~~specifications and all permits~~specifications, ~~licenses and approvals required or obtained in connection with~~ the ~~Restoration. The identity of the contractors, subcontractors and materialmen engaged in the Restoration~~ Company 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 begin work promptly and ~~with commercially~~ thereafter diligently prosecute construction in order to complete all work within such 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~~ time frame 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 may 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~~ prescribed 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, Mortgagee; provided, however, that ~~Lender will release~~ if construction is -------- ------- delayed by force majeure, the ~~portion of the Restoration Retainage being held~~ time for completion shall be extended accordingly; (vi) with respect to ~~any contractor~~each advance of restoration funds, ~~subcontractor or materialman engaged~~ Mortgagee may retain 10% of the amount of such advance as a holdback until the restoration is fully completed; (vii) the restoration funds shall earn interest and will be held in the ~~Restoration~~ Collateral Account; (viii) Mortgagee may impose such other reasonable conditions as are customarily imposed by construction lenders; and (ix) any restoration funds remaining shall be retained by Mortgagee and may be applied by Mortgagee, in its sole discretion, to the Indebtedness in the inverse order of the ~~date upon which~~ amortization payments set forth in 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 materialmanCredit Agreement.

Appears in 1 contract

Samples: Mortgage and Security Agreement (V I Technologies Inc)

Restoration. ~~The~~ Subject to the rights of Mortgage Loan Lender and Mezzanine 1 Lender, and the obligations of Mortgage Loan Borrower and Maryland Owner under the Mortgage Loan Documents and Mezzanine 1 Borrower under the Mezzanine 1 Loan Documents (each of which shall control in the event of any conflict until such time as the Mortgage Loan and Mezzanine 1 Loan may be paid or satisfied), the following provisions shall apply in connection with the Restoration of the Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the applicable Restoration Threshold and the costs of completing the Restoration shall be less than the applicable Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower, Mezzanine 1 Borrower and Property Owners, as the case may be, upon receipt, provided that all of the conditions set forth in Section ~~7.4(b)(i~~8.4(b)(i) below, those conditions set forth in Section 8.4(b)(1) of the applicable Mezzanine 1 Loan Agreement and (in the case of Xxxxx Fargo Mortgage Loan Property) those conditions set forth in Section 8.4(b)(i) of the Xxxxx Fargo Mortgage Loan Agreement are each met and Borrower delivers to Lender a written undertaking by Property Owners to expeditiously commence and to satisfactorily complete with due diligence the Restoration in accordance with the terms of this Agreement, the Mezzanine 1 Loan Agreement and (in the case of Xxxxx Fargo Mortgage Loan Property) the Xxxxx Fargo Mortgage Loan Agreement. (b) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the applicable Restoration Threshold or the costs of completing the Restoration are equal to or greater than the applicable Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section ~~7.4.~~ 8.4. The term “Net Proceeds” for purposes of this Section 8.4 means: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ the net amount of ~~the following conditions are met:~~ all insurance proceeds received by Lender pursuant to Section 8.1(a)(i), (Aiv), (vi), (vii) 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 each of (i) fair market value of the Property as reasonably determined by Lender, and (iiviii) ~~rentable area of the Property has been damaged, destroyed or rendered unusable~~ as a result of a ~~Casualty~~ Casualty, after deduction of its reasonable costs and expenses (including, reasonable counsel fees), if any, in collecting the same (“Insurance Proceeds”), or ~~(2) in the event the Net Proceeds are condemnation proceeds, less than ten percent (10%) of each of (i) the fair market value of the Property as reasonably determined by Lender and~~ (ii) ~~rentable area~~ the net amount of the ~~Property is taken~~Award as a result of a Condemnation, ~~such land is located along~~ after deduction of its reasonable costs and expenses (including reasonable counsel fees), if any, in collecting the ~~perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property;~~ same (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 delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking“Condemnation Proceeds”), 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 1 contract

Samples: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c~~If any Net Award is in excess of $250,000 for any Related Premises, then Landlord (or Lender if required by any Mortgage) ~~hereof, if~~ shall hold the Net ~~Proceeds shall be less than~~ Award in a fund (the "Restoration Fund") and disburse amounts from the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund only in accordance with the terms of this Agreement. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.following conditions: (i) ~~The Net Proceeds shall be made available for Restoration provided that each~~ prior to commencement of ~~the following conditions are met:~~ restoration, (A) the architects, contracts, contractors, plans and specifications and a budget for the restoration shall have been approved by Landlord, (B) Landlord and Lender shall be provided with mechanics' lien insurance (if available) and acceptable performance and payment bonds which insure satisfactory completion of and payment for the restoration, are in an amount and form and have a surety acceptable to Landlord, and name Landlord and Lender as additional dual obligees, and (C) appropriate waivers of mechanics' and materialmen's liens shall have been obtained and/or filed; (ii) at the time of any disbursement, no Event of Default shall exist and no mechanics' or materialmen's liens shall have ~~occurred~~ been filed against any of the Leased Premises and ~~be continuing~~remain undischarged; (iii) disbursements shall be made from time to time in an amount not exceeding the cost of the Work completed since the last disbursement, upon receipt of (A) satisfactory evidence, including architects' certificates, of the stage of completion, the estimated total cost of completion and performance of the Work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (1C) contractors' and subcontractors' sworn statements as to completed Work and the cost thereof for which payment is requested, (D) a satisfactory bringdown of title insurance and (E) other evidence of cost and payment so that Landlord and Lender can verify that the amounts disbursed from time to time are represented by Work that is completed, in place and free and clear of mechanics' and materialmen's lien claims; (iv) each request for disbursement shall be accompanied by a certificate of Tenant, signed by the ~~event~~ president or a vice president of Tenant, describing the ~~Net Proceeds are insurance proceeds~~Work for which payment is requested, ~~less than thirty percent (30%) of each of (i) fair market value~~ stating the cost incurred in connection therewith, stating that Tenant has not previously received payment for such Work and, upon completion of the ~~Property as reasonably determined by Lender~~Work, ~~and (ii) rentable area of~~ also stating that the ~~Property~~ Work has been ~~damaged, destroyed or rendered unusable as a result~~ fully completed and complies with the applicable requirements of ~~a Casualty or~~ this Lease; (2v) ~~in the event the Net Proceeds are condemnation proceeds, less than~~ Landlord may retain ten percent (10%) of ~~each of (i)~~ the ~~fair market value of~~ Restoration Fund until the ~~Property as reasonably determined by Lender and (ii) rentable area of the Property~~ Work is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Propertyfully completed; (Cvi) ~~Leases demising~~ If the Restoration Fund is held by Landlord, the Restoration Fund shall not be commingled with Landlord's other funds and shall bear interest at a rate agreed to by Landlord and Tenant; and (vii) such other reasonable conditions as Landlord or Lender may impose. (b) Prior to commencement of restoration and at any time during restoration, if the estimated cost of completing the restoration work free and clear of all liens, as determined by Landlord, exceeds the amount of the Net Award available for such restoration, the amount of such excess shall, upon demand by Landlord, be paid by Tenant to Landlord to be added to the Restoration fund. Any sum so added by Tenant which remains in the ~~aggregate a percentage amount equal~~ Restoration Fund upon completion of restoration shall be refunded to ~~or greater than 75%~~ Tenant. For purposes of determining the ~~total rentable space in~~ source of funds with respect to the ~~Property which has been demised under executed and delivered Leases in effect as~~ disposition 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~~ funds remaining after the completion of restoration, the ~~Restoration, notwithstanding~~ Net Award shall be deemed to be disbursed prior to any amount added by Tenant. (c) If any sum remains in 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 Restoration Fund 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) restoration and ~~shall diligently pursue the same~~ any refund 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) 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 Major Leases, (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 Tenant 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 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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(bParagraph 19(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 such sum (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"Remaining Sum") shall, 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)exist, 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 paid 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 materialmanTenant.

Appears in 1 contract

Samples: Lease Agreement (Corporate Property Associates 16 Global Inc)

Restoration. (a) Borrower and/or Operating Lessee as applicable shall give prompt written notice of any casualty to the Property which would cost more than $500,000.00 to repair to Lender whether or not required to be insured against. The ~~following provisions~~ notice shall ~~apply~~ describe the nature and cause of the casualty and the extent of the damage to the Property. Borrower and/or Operating Lessee as applicable covenants and agrees to commence and diligently pursue to completion the Restoration. (b) Borrower assigns to Lender all Insurance Proceeds which Borrower and/or Operating Lessee as applicable is entitled to receive in connection with a casualty whether or not such insurance is required under this Mortgage. Except as and to the ~~Restoration~~ extent provided in Section 7.4, in the event of any damage to or destruction of the Property: , and provided (a1) ~~Subject~~ an Event of Default does not currently exist, and (2) Lender has determined that (i) there has not been an Impairment of the Security (as defined in Section 7.2 (c)), and (ii) the repair, restoration and rebuilding of any portion of the Property that has been partially damaged or destroyed (the “Restoration”) can be accomplished in full compliance with all Requirements to ~~Section 7.4(c) hereof~~the same condition, if character and general utility as nearly as possible to that existing prior to the casualty and at least equal in value as that existing prior to the casualty, the Net Insurance Proceeds shall be ~~less than~~ applied to the ~~Restoration Threshold and the costs~~ Cost of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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”)Article. Lender shall ~~have~~ hold and disburse the ~~use~~ Insurance Proceeds less the cost, if any, to Lender of recovering 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 Insurance Proceeds ~~available for the Restoration~~ including, without limitation, reasonable ~~counsel~~ attorneys’ fees and ~~disbursements~~ expenses, and adjusters’ fees (the “Net Insurance Proceeds”) to the Restoration. (c) For the purpose of this Article, “Impairment of the Security” shall mean any or all of the following: (i) the casualty or damage occurs during the last year of the term of the Loan, including any extensions; or (ii) restoration of the Property is estimated to require more than one year to complete from the date of the occurrence; or (iii) the occurrence of a Material Casualty ~~Consultant’s fees~~(as defined in 7.4(b)) or a Material Condemnation (as defined in Section 7.4(b)), ~~shall be paid by Borrower.~~ if the Management Agreement does not require Operating Lessee or Borrower ~~shall~~ to restore the Property, and/or Operating Lessee and/or Borrower have the right to ~~settle all claims under~~ terminate 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 Management Agreement pursuant to the ~~Policy under which such claim is brought has not raised any act~~ terms of the ~~insured~~ Management Agreement as a ~~defense to the payment~~ result of such ~~claim. If an Event of Default exists, Lender shall, at its election, have the exclusive right to settle~~ Casualty or ~~adjust any claims made under the Policies in the event of a Casualty~~Condemnation. (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 1 contract

Samples: Mortgage, Security Agreement and Fixture Filing (Strategic Hotels & Resorts, Inc)

Restoration. The following provisions shall apply in connection with the Restoration of any Individual Property (provided, that, Borrower shall not be required to restore an Individual Property that is a Leased Fee Leased Restoration Failure Property that has been released in accordance with Section 2.7(d) and Section 7.2 hereof nor shall Borrower be required to restore to the ~~Property:~~extent such restoration is not required pursuant to the proviso in the first sentence of Section 7.2): (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available for Restoration provided that each of the following conditions are met: (A) no Event of Default shall have occurred and be ~~continuing~~continuing and the Anticipated Repayment Date shall not have occurred; (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 fair market value of the applicable Individual Property as reasonably determined by Lender and (ii) rentable area of the applicable Individual Property is taken, such land is located along the perimeter or periphery of the applicable Individual Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the applicable Individual Property; (C) ~~Leases demising in~~ the ~~aggregate a percentage amount equal~~ Lease related to ~~or greater than 75% of the total rentable space in the~~ such Individual Property which ~~has been demised under executed and delivered Leases in effect as of the date of the occurrence of~~ is subject to such ~~fire~~ Casualty or ~~other casualty or taking, whichever the case may be,~~ Condemnation 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~~ such Lease shall continue ~~to operate their respective space~~ at ~~the~~ such 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; (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 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 the Restoration will be completed on or before the earliest to occur of (1) six (6) months prior to the ~~Maturity~~ Anticipated Repayment Date, (2) six (6) months after the occurrence of such fire or other casualty or ~~taking~~taking (or such longer period as Lender may reasonably determine), (3) the earliest date required for such completion under the terms of any ~~Major Leases~~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 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 applicable Individual Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal ~~Requirements~~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~~Requirements and the Property Documents; (L) ~~Lender shall be satisfied,~~ the Property Documents will remain in ~~its sole~~ full force and ~~absolute discretion, that~~ effect during and after the Restoration and a Property Document Event shall not occur as a result of the ~~Property will not be limited or restricted by the terms of the ZLDA~~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~~ 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, 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~~ Lxxxxx and by an independent consulting engineer selected by ~~Lender~~ 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 ~~Lender~~ Lxxxxx 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~~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 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 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 ~~Lender~~ 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 ~~Lender~~ 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 1 contract

Samples: Loan Agreement (Istar Inc.)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the~~ any Individual Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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~~ thirty-five percent (3035%) 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 fair market value of the applicable Individual Property as reasonably determined by Lender and (ii) rentable area of the applicable Individual Property is taken, such land is located along the perimeter or periphery of the Property, (iii) no portion of the Improvements is located on such land and (iv) such taking does not materially impair the existing access to the ~~Property; (C) Leases demising in~~ applicable Individual Property or the ~~aggregate a percentage amount equal to or greater than 75%~~ continued operation 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 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 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 Borrowerself storage facility; (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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 1 contract

Samples: Loan Agreement (Strategic Storage Trust, Inc.)

Restoration. (a) Affiliated Guarantor and/or Operating Lessee as applicable shall give prompt written notice of any casualty to the Property which would cost more than $500,000.00 to repair to Lender whether or not required to be insured against. The ~~following provisions~~ notice shall ~~apply~~ describe the nature and cause of the casualty and the extent of the damage to the Property. Affiliated Guarantor and/or Operating Lessee as applicable covenants and agrees to commence and diligently pursue to completion the Restoration (as defined in (b) below). (b) Affiliated Guarantor assigns to Lender all Insurance Proceeds which Affiliated Guarantor and/or Operating Lessee as applicable is entitled to receive in connection with a casualty whether or not such insurance is required under this Mortgage. Except as and to the ~~Restoration~~ extent provided in Section 7.4, in the event of any damage to or destruction of the Property: , and provided (a1) ~~Subject~~ an Event of Default does not currently exist, and (2) Lender has determined that (i) there has not been an Impairment of the Security (as defined in Section 7.2 (c)), and (ii) the repair, restoration and rebuilding of any portion of the Property that has been partially damaged or destroyed (the “Restoration”) can be accomplished in full compliance with all Requirements to ~~Section 7.4(c) hereof~~the same condition, if character and general utility as nearly as possible to that existing prior to the casualty and at least equal in value as that existing prior to the casualty, the Net Insurance Proceeds shall be ~~less than~~ applied to the ~~Restoration Threshold and the costs~~ cost of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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”)Article. Lender shall ~~have~~ hold and disburse the ~~use~~ Insurance Proceeds less the cost, if any, to Lender of recovering 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 Insurance Proceeds ~~available for the Restoration~~ including, without limitation, reasonable ~~counsel~~ attorneys’ fees and ~~disbursements~~ expenses, and adjusters’ fees (the “Net Insurance Proceeds”) to the Restoration. (c) For the purpose of this Article, “Impairment of the Security” shall mean any or all of the following: (i) the casualty or damage occurs during the last year of the term of the St. Xxxxxxx Loan, including any extensions; or (ii) restoration of the Property is estimated to require more than one year to complete from the date of the occurrence; or (iii) the occurrence of a Material Casualty ~~Consultant’s fees~~(as defined in 7.4(b)) or a Material Condemnation (as defined in Section 7.4(b)), ~~shall be paid by Borrower. Borrower shall~~ if the Management Agreement does not require Operating Lessee or Affiliated Guarantor to restore the Property, and/or Operating Lessee and/or Affiliated Guarantor have the right to ~~settle all claims under~~ terminate 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 Management Agreement pursuant to the ~~Policy under which such claim is brought has not raised any act~~ terms of the ~~insured~~ Management Agreement as a ~~defense to the payment~~ result of such ~~claim. If an Event of Default exists, Lender shall, at its election, have the exclusive right to settle~~ Casualty or ~~adjust any claims made under the Policies in the event of a Casualty~~Condemnation. (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 1 contract

Samples: Subordinate Mortgage, Security Agreement and Fixture Filing (Strategic Hotels & Resorts, Inc)

Restoration. ~~The following provisions~~ So long as no Event of Default shall ~~apply~~ ----------- have occurred and be continuing, in ~~connection with~~ the ~~Restoration~~ event there shall be a Net Condemnation Award or Net Insurance Proceeds in an amount less than $1,000,000, the Mortgagor shall have the right, at the Mortgagor's option, but subject nevertheless to the rights of the ~~Property: (a) Subject~~ Lessor under the Mortgaged Lease, to ~~Section 7.4(c) hereof, if~~ apply such Net Condemnation Award or Net Insurance Proceeds to the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all payment of the conditions set forth in Section 7.4(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) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration Secured Obligations in accordance with the provisions of ~~this~~ Section ~~7.4. (i~~2.13(f) ~~The Net Proceeds shall be made available for Restoration provided that each~~ of the ~~following conditions are met:~~ Credit Agreement or to --------------- perform a restoration (Aeach, a "Restoration") ~~no Event~~ of ~~Default shall have occurred~~ the Premises. In the event the ----------- Mortgagor is permitted by the terms of the Mortgaged Lease to perform a Restoration and ~~be continuing; (B) (1)~~ elects to perform a Restoration or 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 that a ~~result of~~ Mortgaged Lease requires Mortgagor to perform a Casualty or (2) in the event the Net Proceeds are condemnation proceeds, less than ten percent (10%) of each of (i) the fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access Restoration pursuant to the ~~Property; (C) Leases demising in~~ immediately preceding sentence, 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 delivered Leases in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, Mortgagor 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 within thirty (30) days after the ~~issuance~~ date that the Mortgagor receives notice of ~~a building permit with respect thereto) and shall diligently pursue~~ collection by the ~~same to satisfactory completion in compliance with all~~ Lessor or the Mortgagee, as the case may be, of the applicable ~~Legal Requirements~~Net Insurance Proceeds or Net Condemnation Award, ~~including~~as the case may be, ~~without limitation, all applicable Environmental Laws; (E) Lender shall be satisfied that any operating deficits which will be incurred with respect~~ deliver to the ~~Property as~~ Mortgagee (i) a ~~result~~ written notice of ~~the occurrence of any~~ such ~~fire or other casualty or taking will be covered out of~~ election and (1ii) an Officers' Certificate stating that (A) the Net ~~Proceeds~~Insurance Proceeds or Net Condemnation Award, ~~(2)~~ as the ~~insurance coverage referred to in Section 7.1(a)(iii) above~~case may be, ~~or (3) by other funds of Borrower; (F) Lender~~ shall be ~~satisfied that~~ utilized to perform a Restoration in the manner contemplated by this Section 10.3 and (B) no ------------ Event of Default has occurred and is continuing (the items described in clauses (i) and (ii) of this sentence, collectively, the "Restoration Election Notice"). --------------------------- In the event the Mortgagee does not receive a Restoration Election Notice within such 30-day period, the Mortgagee may apply any such Net Insurance Proceeds ~~together with any cash~~ or ~~cash equivalent deposited~~ Net Condemnation Award held by ~~Borrower with Lender are sufficient~~ the Mortgagee to ~~cover~~ the ~~cost~~ payment of the ~~Restoration;~~ Secured Obligations in accordance with the provisions of Section 2.13(f) of the Credit --------------- Agreement or, at the option of the Mortgagee, may continue to hold such Net Insurance Proceeds or Net Condemnation Award in the Collateral Account as additional collateral to secure the performance by the Mortgagor of the Secured Obligations. In the event the Mortgagor elects to perform any Restoration contemplated by this Section 10.3, the Mortgagee shall release such Net ------------ Condemnation Award or Net Insurance Proceeds to the Mortgagor as soon as practicable following receipt of a Restoration Election Notice in accordance with the provisions of Section 8.2(ii) of the Security Agreement. The Mortgagor --------------- shall, within fifteen (G15) ~~Lender shall be satisfied~~ days following the date of its receipt of any proceeds in respect of a Destruction or Taking, as the case may be, commence and diligently continue to perform the Restoration of that portion or portions of the Improvements subject to such Destruction or affected by such Taking so that, upon the completion of the Restoration, the ~~fair market~~ Premises will be in the same condition and shall be of at least equal value and ~~cash flow of the Property will not be less than the fair market value and cash flow of the Property~~ utility for its intended purposes as the ~~same existed~~ Premises was immediately prior to ~~the applicable Casualty~~ such Destruction 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 DocumentsTaking. The ~~Net Proceeds (other than the Rent Loss Proceeds)~~ Mortgagor 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 so complete such Restoration with its own funds 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 amount of any ~~nature whatsoever on the Property which have not either been fully bonded to the satisfaction of Lender and discharged of record~~ Net Condemnation Award or ~~in the alternative fully insured to the satisfaction of Lender by the title company issuing the Title~~ Net Insurance ~~Policy~~Proceeds is insufficient for such purpose. (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 1 contract

Samples: Mortgage Agreement (Applied Power Inc)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold Premises or the ~~costs of completing~~ Building or a part thereof are materially damaged by any fire, flood, earthquake or other casualty, Landlord shall have the ~~Restoration are equal~~ right to ~~or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of~~ terminate this ~~Section 7.4.~~ Lease upon written notice to Tenant if: (i) ~~The Net Proceeds~~ Landlord reasonably determines that the full cost of repair (exclusive of any deductible up to seven and one-half percent of the loss amount) is not covered by Landlord’s insurance that Landlord is required to maintain by this Lease which Landlord carries and includes as part of Operating Expenses, including without limitation earthquake insurance, plus such additional amounts Tenant elects, at its option, to contribute, excluding however the deductible (for which Tenant shall be ~~made available~~ responsible for ~~Restoration provided~~ Tenant’s Share as an Operating Expense); (ii) Landlord reasonably determines that ~~each~~ the Premises cannot, with reasonable diligence, be fully repaired by Landlord (or cannot be safely repaired because of the ~~following conditions are met: (A~~presence of hazardous factors, including without limitation Hazardous Materials, earthquake faults, and other similar dangers) ~~no Event of Default shall have occurred and be continuing; (B)~~ within one (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 delivered Leases in effect as of year after the date of the ~~occurrence~~ damage; (iii) an uncured Event of Default by Tenant has occurred and remains uncured at the time of such ~~fire~~ casualty; or ~~other casualty or taking, whichever~~ (iv) the ~~case may be, shall remain in full force and effect~~ material damage occurs during ~~and after~~ the ~~completion~~ final twelve (12) months 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 Term. Landlord shall ~~continue to operate their respective space at the Property after the completion of the Restoration;~~ notify Tenant in writing (D“Landlord’s Notice”) ~~Borrower shall commence (or shall cause the commencement of) the Restoration as soon as reasonably practicable (but in no event later than~~ within thirty (30) days after the ~~issuance of a building permit with respect thereto~~damage occurs as to (A) 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 whether Landlord is terminating this Lease as a result of such material damage and (B) if Landlord is not terminating this Lease, the ~~occurrence~~ number of ~~any~~ days within which Landlord has estimated that the Premises, with reasonable diligence, are likely to be fully repaired. In the event Landlord elects to terminate this Lease, this Lease shall terminate as of the date of Landlord’s Notice. Notwithstanding the foregoing, Landlord shall only have the right to terminate this Lease under (i) above if Landlord terminates the leases of all tenants in the Project similarly damaged by such ~~fire or other~~ casualty ~~or taking will be covered out~~ and such tenants have comparable rights and obligations in the event 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;~~such casualty. (Fb) ~~Lender shall be satisfied~~ If Landlord has the right to terminate this Lease pursuant to Section 11.1(a) and does not elect to so terminate this Lease, and provided that at the time of Landlord’s Notice no uncured Event of Default exists under this Lease, then within fifteen (15) business days following delivery of Landlord’s Notice pursuant to Section 11.1(a), Tenant may elect to terminate this Lease by written notice to Landlord, but only if (i) Landlord’s Notice specifies that Landlord has determined 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 Premises cannot 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;~~ repaired, with reasonable diligence, within twelve (~~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~~12) months after the ~~occurrence~~ date of ~~such fire~~ damage (the “Maximum Period”) or ~~other casualty or taking,~~ (3ii) the ~~earliest date required for such completion under~~ casualty has occurred within the ~~terms of any Major Leases,~~ final twelve (412) ~~such time as may be required under applicable Legal Requirements or (5) the expiration~~ months of the ~~insurance coverage referred~~ Term and Tenant is prevented from using the Premises for sixty (60) consecutive days due to ~~in Section 7.1(a)(iii~~such damage. If Tenant fails to provide such termination notice within such fifteen (15) 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 shall 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 business day period, Tenant shall be ~~done and completed in an expeditious and diligent fashion and in compliance with all~~ deemed to have waived any termination right under this Section 1l.1(b) or any other applicable Legal Requirements; (L) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 therewithlaw. (iic) ~~The Net Proceeds~~ In the event that neither Landlord nor Tenant terminates this Lease pursuant to this Section 11.1 as a result of material damage to the Building resulting from a casualty, Landlord shall, except as provided in subsection (e) below, repair all material damage to the Premises or the Building as soon as reasonably possible and this Lease shall continue in effect for the remainder of the Term. Notwithstanding the foregoing, the repair of damage to the Premises to the extent such damage is not material shall be ~~held~~ governed by ~~Lender and, until disbursed~~ Sections 7.1 and 7.2. Notwithstanding anything to the contrary contained in ~~accordance with the provisions of~~ this Section ~~7.4(b~~11.1(c), if the anticipated repair period set forth in Landlord’s Notice was less than the Maximum Period but Landlord subsequently determines that the actual repair period will exceed the Maximum Period, then Landlord shall ~~constitute additional security for~~ so notify Tenant and Tenant may, within ten (10) business days thereafter, elect to terminate this Lease effective as of the ~~Debt~~ date of Landlord’s notice; otherwise, the Maximum Period shall be deemed extended as set forth in the notice from Landlord. Should Landlord fail substantially to complete the restoration within the Maximum Period (as the same may be extended as aforesaid), then Tenant may elect to terminate this Lease by written notice to Landlord. (d) From and ~~other obligations~~ after the sixth (6th) business day after such material damage to the Building (or such earlier date that Landlord is entitled to rent loss insurance proceeds), and ending on the sooner of the date the damage is repaired or the date this Lease is terminated, the rental to be paid under this ~~Agreement, the Security Instrument, the Note and the other Loan Documents. The Net Proceeds (other than the Rent Loss Proceeds)~~ Lease shall be ~~disbursed~~ abated in the same proportion that the Floor Area of the Premises that is rendered unusable by ~~Lender to, or as directed by, Borrower~~ the damage from time to time ~~during~~ bears to the ~~course~~ total Floor Area of the ~~Restoration~~Premises, ~~upon receipt~~ as reasonably determined by Landlord. However, in the event that Tenant is prevented from conducting, and does not conduct, its business in any portion of ~~evidence satisfactory~~ the Premises for a period of time in excess of the Eligibility Period, and the remaining portion of the Building is not sufficient to ~~Lender~~ allow Tenant to effectively conduct its business therein, and if Tenant does not conduct its business from such remaining portion, then for such time after expiration of the Eligibility Period during which Tenant is so prevented from effectively conducting its business therein, the rent for the entire Building shall be abated; provided, however, if Tenant reoccupies and conducts its business from any portion of the Building during such period, the rent allocable to such reoccupied portion, based on the proportion that ~~(A) all materials installed and work and labor performed (except~~ the rentable area of such reoccupied portion of the Building bears to the ~~extent that they are to be paid for out~~ total rentable area of the ~~requested disbursement~~Building, shall be payable by Tenant from the date such business operations commence. (e) ~~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~~ Landlord shall not be required to repair or ~~materialman’s liens~~ replace any improvements or ~~notices of intention~~ fixtures that Tenant is obligated to ~~file same,~~ repair or replace pursuant to Section 7.1 or any other ~~liens or encumbrances~~ provision of ~~any nature whatsoever on~~ this Lease but Tenant’s Rent shall continue to axxxx until Tenant has been given sufficient time to repair such improvements, reinstall its furniture, fixtures and equipment and move back into 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 PolicyPremises. (~~iii~~f) ~~All plans~~ Tenant shall fully cooperate with Landlord in removing Tenant’s personal property and ~~specifications required in connection with~~ any debris from the ~~Restoration shall be subject~~ Premises to ~~prior review and acceptance in~~ facilitate all ~~respects by Lender and by an independent consulting engineer selected by Lender (the “Casualty Consultant”). Lender shall have the use~~ inspections 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 Premises 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~~repairs. 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 Notwithstanding anything to the contrary ~~set forth above~~ contained in this ~~Subsection 7.4(b)~~Lease, ~~be less than~~ if Landlord in good faith believes there is a risk of injury to persons or damage to property from entry into the ~~amount actually held back~~ Building or Premises following any damage or destruction thereto, Landlord may restrict entry into the Building or the Premises by ~~Borrower from contractors~~Tenant, ~~subcontractors~~ its employees, agents and ~~materialmen engaged~~ contractors in a non-discriminatory manner, without being deemed to have violated Tenant’s rights of quiet enjoyment to, or made an unlawful detainer of, or evicted Tenant from, the ~~Restoration~~Premises. ~~The Restoration Retainage~~ Upon request, Landlord shall ~~not be released until~~ consult with Tenant to determine if there are safe methods of entry into the ~~Casualty Consultant certifies~~ Building or the Premises solely in order to ~~Lender that the Restoration has been completed~~ allow Tenant to retrieve files, data 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 authoritiescomputers, and ~~Lender receives evidence satisfactory~~ necessary inventory, subject however to ~~Lender that the costs~~ all indemnities and waivers of ~~the Restoration have been paid~~ liability from Tenant to Landlord contained in ~~full or will be paid in full out~~ this Lease and any additional indemnities and waivers 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 liability 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 Landlord 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 materialmanrequire.

Appears in 1 contract

Samples: Lease (Broadcom Corp)

Restoration. The following provisions shall apply in connection with the Restoration of ~~the~~ any Individual Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by ~~Lender~~ Administrative Agent to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, ~~Lender~~ Administrative Agent shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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~~ forty percent (3040%) of each of (i) fair market value of the applicable Individual Property as reasonably determined by ~~Lender~~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~~ fifteen percent (1015%) of each of (i) the fair market value of the applicable Individual Property as reasonably determined by ~~Lender~~ Administrative Agent and (ii) rentable area of the applicable Individual Property is taken, such land is located along the perimeter or periphery of the applicable Individual Property, no material portion of the Improvements is located on such land and such taking does not materially impair the existing access to the applicable Individual Property; (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 delivered Leases in effect as of the date of the occurrence of such ~~fire~~ Casualty or ~~other casualty or taking~~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 ~~Lender~~ Administrative Agent evidence satisfactory to ~~Lender~~ 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~~Applicable Laws, including, without limitation, all applicable Environmental Laws; (E) ~~Lender~~ 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~~ Casualty or ~~other casualty or taking~~ 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) ~~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~~ Administrative Agent shall be satisfied that, upon the completion of the Restoration, the ~~fair market value~~ Reimbursements and ~~cash flow~~ Other Operating Income and Underwritable Cash Flow of the applicable Individual Property will ~~not~~ be ~~less than the fair market value~~ restored to a level sufficient to cover all carrying costs and ~~cash flow~~ operating expenses of the ~~Property as the same existed immediately prior to the~~ applicable ~~Casualty or Condemnation~~Individual Property; (HG) ~~Lender~~ 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 Major Leases, (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, 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 Casualty or Condemnation; (IH) Borrower shall execute and deliver to ~~Lender~~ Administrative Agent, for the benefit of Lenders, a completion guaranty in form and substance satisfactory to ~~Lender~~ Administrative Agent and its counsel pursuant to the provisions of which Borrower shall guaranty to ~~Lender~~ 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); (JI) the applicable Individual 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 ~~Legal Requirements;~~Casualty, Condemnation and/or Restoration; and (K) the Restoration shall be done and completed in an a reasonably expeditious and diligent fashion and in material compliance with ~~all applicable Legal Requirements; (L) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of~~ the Property will not be limited or restricted by the terms of the ZLDA; 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 therewithDocuments and all Applicable Law. (ii) The Net Proceeds shall be held by ~~Lender~~ 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 ~~Lender~~ Administrative Agent to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to ~~Lender~~ 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 applicable Individual Property which have not either been fully bonded to the satisfaction of ~~Lender~~ Administrative Agent and discharged of record or in the alternative fully insured to the satisfaction of ~~Lender~~ 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 ~~Lender~~ Administrative Agent and by an independent consulting engineer selected by ~~Lender~~ Administrative Agent (the “Casualty Consultant”), such acceptance not to be unreasonably withheld, conditioned or delayed. ~~Lender~~ 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 ~~Lender~~ Administrative Agent and the Casualty Consultant, such acceptance not to be unreasonably ~~withheld~~ withheld, conditioned or delayed. All reasonable costs and expenses incurred by ~~Lender~~ 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 ~~jointly with Lender~~(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, ~~Lender~~ 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 ~~Lender~~ 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 ~~Lender~~ 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 ~~Lender~~ 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 ~~Lender~~ Administrative Agent receives evidence satisfactory to ~~Lender~~ 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 ~~Lender~~ 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 ~~Lender~~ 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 ~~Lender~~ Administrative Agent or by the title company insuring the lien of the Security Instrument. If required by ~~Lender~~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. The following provisions shall apply in connection with the Restoration of the Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4. (i) The Net Proceeds shall be made available 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 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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or LOAN AGREEMENT – Page 83 41458-112/Patuxent Crossing (MD) and Coliseum Marketplace (VA) periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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,~~ that (I) 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~~Condemnation and (II) Restoration of the Improvements on the Land (as each existed immediately prior to the applicable casualty or condemnation (with such changes to the 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 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 ~~Major Leases~~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;; LOAN AGREEMENT – Page 84 41458-112/Patuxent Crossing (MD) and Coliseum Marketplace (VA) (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~~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~~Requirements and the Property Documents; (L) ~~Lender shall be satisfied,~~ the Property Documents will remain in ~~its sole~~ full force and ~~absolute discretion, that~~ effect during and after the Restoration and a Property Document Event shall not occur as a result of the ~~Property will not be limited or restricted by the terms of the ZLDA~~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~~ Xxxxxx 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~~ xxxxxxxx's or materialman’s '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~~ Xxxxxx and by an independent consulting engineer selected by ~~Lender~~ Xxxxxx (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~~ Xxxxxx 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 's fees, shall be paid by ~~Borrower~~Xxxxxxxx. Borrower shall have the right to settle all claims under the LOAN AGREEMENT – Page 85 41458-112/Patuxent Crossing (MD) and Coliseum Marketplace (VA) Policies jointly with ~~Lender~~Xxxxxx, 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's, subcontractor’s 's or materialman’s '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~~ Xxxxxx 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 1 contract

Samples: Loan Agreement (Cedar Realty Trust, Inc.)

Restoration. ~~The following provisions~~ Borrower shall ~~apply~~ restore and repair the Improvements and Equipment 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, Borrower shall so restore and repair even though no Insurance Proceeds are received. Notwithstanding anything to the contrary set forth in ~~connection with~~ Section 7.6, Lender 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 7.6) available to Borrower for Borrower’s restoration and repair of the ~~Property~~Improvements, Equipment and Inventory affected by the Casualty or Taking (a “Restoration”), as applicable, on the following terms and subject to Borrower’s satisfaction of the following conditions; provided, that Lender shall have the right to waive any of the following conditions in its discretion: (a) ~~Subject to Section 7.4(c) hereof~~At the time of such Casualty or Taking, ~~if the Net Proceeds~~ as applicable, and at all times thereafter there shall ~~be less than the Restoration Threshold and the costs~~ exist no Event of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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.Default; (b) ~~Subject~~ The Improvements, Equipment and Inventory affected by the Casualty or Taking, as applicable, shall be capable of being restored (including replacements) to ~~Section 7.4(c) hereof~~substantially the same condition, if 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 ~~Net Proceeds are~~ Property equal to or greater than prior to such Casualty or Taking, as applicable; (c) Borrower shall demonstrate to Lender’s reasonable satisfaction Borrower’s ability to pay the ~~Restoration Threshold~~ Indebtedness coming due during such repair or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.restoration period (after taking into account proceeds from business interruption insurance carried by Borrower); (i) ~~The Net Proceeds shall be made available 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 of a Casualty, the ~~Net Proceeds are insurance proceeds,~~ Casualty resulted in an actual or constructive loss of less than ~~thirty~~ fifty percent (3050%) 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 fair market value of the ~~Property as reasonably determined by Lender and~~ applicable Individual Property, or (ii) ~~rentable area~~ in the event of a Taking, the Taking resulted in an actual or constructive loss of less than fifteen percent (15%) of the fair market value of the applicable Individual Property, less than fifteen percent (15%) of the land constituting the applicable Individual Property is taken, such land is located along the perimeter or periphery of the applicable Individual Property, and no portion of the Improvements ~~is located~~ on such ~~land and~~ Individual Property is the subject of such ~~taking does not materially impair the existing access to the Property~~Taking; (Ce) ~~Leases demising in the aggregate a percentage amount equal~~ Borrower shall have provided to ~~or greater than 75%~~ Lender all of the ~~total rentable space in~~ following, and collaterally assigned the ~~Property which has been demised under executed~~ same to Lender pursuant to assignment documents acceptable to Lender: (i) an architect’s contract with an architect reasonably acceptable to Lender and ~~delivered Leases in effect as~~ complete plans and specifications for the Restoration of the ~~date of~~ Improvements, Equipment and Inventory lost or damaged to the ~~occurrence of such fire~~ condition, utility and value required by Section 7.7(b); (ii) fixed-price or ~~other casualty or taking, whichever the case may be, shall remain in full force and effect during and after the~~ guaranteed maximum cost construction contracts with contractors reasonably acceptable to Lender for completion of the ~~Restoration~~Restoration work in accordance with the aforementioned plans and specifications; (iii) such additional funds (if any) as are necessary from time to time, ~~notwithstanding~~ in Lender’s reasonable opinion, to complete the ~~occurrence~~ Restoration (which funds shall be held by Lender as additional collateral securing the Indebtedness and shall be disbursed, if at all, pursuant to this Article 7); and (iv) copies of ~~any~~ all permits and licenses necessary to complete the Restoration in accordance with the plans and specifications and all Legal Requirements. (f) Borrower shall use commercially reasonable efforts to commence such work within one hundred twenty (120) days after such Casualty or ~~Condemnation~~Taking, ~~whichever the case may be~~as applicable, 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~~ such work to ~~satisfactory completion in compliance with all applicable Legal Requirements, including, without limitation, all applicable Environmental Laws~~completion; (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; (Hg) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1A) the date 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 Major Leases, (4~~B) such time as may be required under applicable Legal Requirements in order to repair and restore the Property to the condition it was in immediately prior to such Casualty or such Taking, as applicable, or (5C) the expiration of the business interruption insurance coverage referred to in Section ~~7.1(a)(iii) above;~~7.1(d); and (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 shall guaranty to Lender the lien-free completion by Borrower of the Restoration in accordance with the provisions of this Subsection 7.4(b); (Jh) 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 1 contract

Samples: Loan Agreement (Gladstone Commercial Corp)

Restoration. The following provisions shall apply in connection with the Restoration of the Property: (a) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section ~~7.4(b)(i~~9.4(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) ~~Subject to Section 7.4(c) hereof, if~~ If the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section ~~7.4~~9.4. (i) The Net Proceeds shall be made available 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 each of (i) the fair market value of the Property as reasonably determined by Lender, and (ii) the 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 fair market value of the Property as reasonably determined by Lender and (ii) the rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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~~Applicable Laws, in all material respects, 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~~9.1(a)(iii) ~~above~~hereof, 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~~ reasonably 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; (HG) 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) ~~six~~ the expiration of the insurance coverage referred to in Section 9.1(a)(iii) hereof, (63) ~~months after~~ such time as may be required under applicable zoning law, ordinance, rule or regulation in order to repair and restore the ~~occurrence of~~ Property as nearly as possible to the condition it was in immediately prior to such fire or other casualty or taking, or (34) the earliest date required for such completion under the terms of any ~~Major Leases, (4) such time as may be required under applicable Legal Requirements~~ Material Agreements or ~~(5) the expiration of the insurance coverage referred to in Section 7.1(a)(iii) above~~REA; (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 shall guaranty to Lender the lien-free completion by Borrower of the Restoration in accordance with the provisions of this Subsection 7.4(b); (JH) the Property and the use thereof after the Restoration will be in compliance with and permitted under any REA, any Material Agreements and all ~~applicable Legal Requirements~~Applicable Law; (KI) the Restoration shall be done and substantially completed in an expeditious and diligent fashion and in compliance with any REA, any Material Agreements and all ~~applicable Legal Requirements; (L) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA~~Applicable Law; and (MJ) if a Securitization has occurred, Lender shall be satisfied that making the Net Proceeds available for Restoration shall be permitted pursuant to the REMIC ~~Requirements and, in that regard, Lender may require Borrower to deliver a REMIC Opinion in connection therewith~~Requirements. (ii) ~~The~~ With respect to a Casualty or Condemnation where the Net Proceeds in connection therewith are equal to or greater than the Restoration Threshold or the cost of completing the Restoration is equal to or greater than the Restoration Threshold, the Net Proceeds shall be held by Lender and, until disbursed in accordance with the provisions of this Section ~~7.4(b~~9.4(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 reasonable 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~~ All such plans and specifications and all permits, licenses and approvals required or obtained in connection with the ~~Restoration~~Restoration shall be assigned to Lender as additional collateral for the Loan and Lender shall have the use of the same. 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~~ which acceptance shall not to be unreasonably ~~withheld~~ withheld, delayed or ~~delayed~~conditioned. 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~~Section 9.4(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~~Section 9.4(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~~Section 9.4(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 1 contract

Samples: Loan Agreement (Gaia, Inc)

Restoration. ~~The following provisions~~ Notwithstanding anything to the contrary set forth in Section 5.7, Lender agrees that Lender shall ~~apply~~ make the Net Restoration Proceeds (other than business interruption insurance proceeds, which shall be held and disbursed as provided in ~~connection with the Restoration~~ Section 5.7) available to Borrower for Borrower’s restoration and repair of the ~~Property~~Improvements affected by the Casualty or Taking (a “Restoration”), as applicable, on the following terms and subject to Borrower’s satisfaction of the following conditions; provided, that Lender shall have the right to waive any of the following conditions in its discretion: (a) ~~Subject to Section 7.4(c) hereof~~At the time of such Casualty or Taking, ~~if the Net Proceeds~~ as applicable, and at all times thereafter there shall ~~be less than the Restoration Threshold and the costs~~ exist no Event of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(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.Default; (b) ~~Subject~~ The Improvements affected by the Casualty or Taking, as applicable, shall be capable of being restored (including replacements) to ~~Section 7.4(c) hereof~~substantially the same condition, if 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 ~~Net Proceeds are~~ Property equal to or greater than prior to such Casualty or Taking, as applicable; (c) Borrower shall demonstrate to Lender’s reasonable satisfaction Borrower’s ability to pay the ~~Restoration Threshold~~ Indebtedness coming due during such repair or restoration period (after taking into account proceeds from business interruption insurance carried by Borrower), the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.following: (i) ~~The Net Proceeds shall be made available 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 of a Casualty, the ~~Net Proceeds are insurance proceeds,~~ Casualty resulted in an actual or constructive loss of 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 fair market value of the Property ~~as reasonably determined by Lender~~ and less than thirty percent (30%) of the rentable area of the Property, (ii) in the event of a Taking, the Taking resulted in an actual or constructive loss of less than fifteen percent (15%) of the fair market value of the Property and less than fifteen percent (15%) of the rentable area of the Property, less than fifteen percent (15%) 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~~ the subject of such ~~land~~ Taking, and ~~such taking does not materially impair the existing access to the Property;~~ (Ciii) in any event, (A) Leases ~~demising in the aggregate a percentage amount equal to or greater than 75%~~ covering at least sixty-five percent (65%) of the ~~total~~ rentable ~~space in~~ square footage of the Property ~~which has been demised under executed~~ and ~~delivered~~ (B) all Major Leases ~~in effect as of the date of the occurrence of such fire or other casualty or taking, whichever the case may be, shall~~ will remain in full force and effect during and after the Restoration. (e) Borrower shall have provided to Lender all of the following, and collaterally assigned the same to Lender pursuant to assignment documents acceptable to Lender: (i) an architect’s contract with an architect reasonably acceptable to Lender and complete plans and specifications for the Restoration of the Improvements lost or damaged to 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~~Restoration work in accordance with the aforementioned plans and specifications; (iii) such additional funds (if any) as are necessary from time to time, ~~notwithstanding~~ in Lender’s reasonable opinion, to complete the ~~occurrence~~ Restoration (which funds shall be held by Lender as additional collateral securing the Indebtedness and shall be disbursed, if at all, pursuant to this Article V); and (iv) copies of ~~any such Casualty or Condemnation, whichever~~ all permits and licenses necessary to complete the ~~case may be,~~ Restoration in accordance with the plans and ~~Borrower furnishes to Lender evidence satisfactory to Lender that~~ specifications and all ~~Tenants under Major Leases shall continue to operate their respective space at the Property after the completion of the Restoration;~~Legal Requirements. (Df) Borrower shall commence such work within one hundred eighty (~~or shall cause the commencement of) the Restoration as soon as reasonably practicable (but in no event later than thirty (30~~180) days after ~~the issuance of a building permit with respect thereto)~~ such Casualty or Taking, as applicable, and shall diligently pursue ~~the same~~ such work to ~~satisfactory completion in compliance with all applicable Legal Requirements, including, without limitation, all applicable Environmental Laws~~completion; (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; (Hg) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1i) the date six (6) months prior to the Maturity ~~Date~~Date (as the same may be extended in accordance with this Agreement), (~~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 Major Leases, (4~~ii) such time as may be required under applicable Legal Requirements in order to repair and restore the Property to the condition it was in immediately prior to such Casualty or such Taking, as applicable, (5iii) the expiration of the business interruption insurance coverage referred to ~~in Section 7.1(a)(iii~~above, and (iv) ~~above; (I) Borrower shall execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender and its counsel~~ earliest date required pursuant to the ~~provisions~~ terms of ~~which Borrower shall guaranty to Lender the lien-free completion by Borrower of the Restoration in accordance with the provisions of this Subsection 7.4(b);~~any Major Lease; and (Jh) 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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 1 contract

Samples: Loan Agreement (Behringer Harvard Opportunity REIT II, Inc.)

Restoration. ~~The following provisions shall apply in connection with~~ If Beneficiary is required to release funds to the ~~Restoration~~ Grantor for restoration of the ~~Property: (a) Subject~~ Trust Property or otherwise elects to ~~Section 7.4(c) hereof~~release such funds to Grantor for such restoration, ~~if the Net Proceeds~~ then such restoration shall be less than the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration performed only in accordance with the ~~terms of this Agreement. (b) Subject to Section 7.4(c) hereof~~following conditions, if unless the ~~Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender~~ Beneficiary shall ~~make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.~~otherwise agree: (i) ~~The Net Proceeds~~ prior to the commencement of any restoration, the plans and specifications for such restoration, and the budgeted costs, shall be ~~made~~ submitted to and approved by Beneficiary; (ii) prior to making any advance of restoration funds, Beneficiary shall be satisfied that the remaining restoration funds together with funds available to Grantor for ~~Restoration provided that each~~ such restoration are sufficient to complete the restoration and to pay all related expenses, including real estate taxes on the Premises, during restoration; (iii) at the time of any disbursement of the ~~following conditions are met:~~ restoration funds, (A) no Event of Default (as defined below) shall have occurred and be continuing, (B) no mechanics’ or materialmen’s liens shall have been filed and remain undischarged, except those discharged by the disbursement of the requested restoration funds and (C) a satisfactory bring-down or continuation of title insurance on the Premises shall be delivered to Beneficiary; (Biv) (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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 disbursements shall be ~~satisfied that any operating deficits which will be incurred with respect~~ made from time 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~~ time 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 an amount not exceeding the cost of the ~~Restoration; (G) Lender shall be satisfied that~~work completed since the last disbursement, upon ~~the completion~~ receipt of satisfactory evidence of the ~~Restoration, the fair market value~~ stage of completion and ~~cash flow~~ of performance of the ~~Property will not be less than the fair market value~~ work in a good 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 Major Leases, (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 workmanlike manner 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 7.4(b)~~contracts, plans and specifications acceptable to Beneficiary; (Jv) with respect to each advance of restoration funds, Beneficiary may retain 10% of the ~~Property and~~ amount of such advance as a holdback until the ~~use thereof after the Restoration will be in compliance with and permitted under all applicable Legal Requirements~~restoration is fully completed; (Kvi) the ~~Restoration~~ restoration funds shall bear no interest and may be ~~done and completed in an expeditious and diligent fashion and in compliance~~ commingled with ~~all applicable Legal Requirements~~Beneficiary’s other funds; (Lvii) ~~Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted~~ Beneficiary may impose such other conditions as are customarily imposed by ~~the terms of the ZLDA~~construction lenders; and (Mviii) ~~Lender~~ any restoration funds remaining after payment of the cost of the work shall be ~~satisfied that making the Net Proceeds available for Restoration~~ retained by Beneficiary and shall be ~~permitted pursuant to REMIC Requirements and~~applied by Beneficiary, 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 PolicyNoteholder Secured Obligations. (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 1 contract

Samples: Deed of Trust (Revlon Consumer Products Corp)

Restoration. ~~The following provisions shall apply in connection with the Restoration of the Property:~~ (a) ~~Subject to Section 7.4(c~~If any Net Award is in excess of One Million Dollars ($1,000,000), Landlord (or Lender if required by any Mortgage) ~~hereof, if~~ shall hold the Net ~~Proceeds shall be less than~~ Award in a fund (the “Restoration Fund”) and disburse amounts from the Restoration Threshold and the costs of completing the Restoration shall be less than the Restoration Threshold, the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all of the conditions set forth in Section 7.4(b)(i) are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due diligence the Restoration Fund only in accordance with the terms of this Agreement. (b) Subject to Section 7.4(c) hereof, if the Net Proceeds are equal to or greater than the Restoration Threshold or the costs of completing the Restoration are equal to or greater than the Restoration Threshold, Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions of this Section 7.4.following conditions: (i) ~~The Net Proceeds~~ Tenant shall commence the restoration as soon as reasonably practical and diligently pursue completion of such restoration to completion; (ii) prior to commencement of restoration, (A) the architects, contracts, contractors, plans and specifications and a detailed budget for the restoration shall have been approved by Landlord, such detailed budget shall reflect that the Restoration Fund is sufficient to cover the costs of restoration, including any additional insurance required as a result of restoration, and payments of Rent due under this Lease (if Landlord reasonably determines that the Restoration Fund is insufficient to cover such costs, Tenant must deposit such required excess amount as directed by Landlord as provided in Paragraph 19(b) below), (B) Landlord and Lender shall be ~~made available~~ provided by Tenant with mechanics’ lien insurance, “owner contractor’s protective liability insurance” (if available), builder’s risk completed value insurance and acceptable performance and payment bonds which insure satisfactory completion of and payment for ~~Restoration provided that each~~ the restoration, are in an amount and form and have a surety acceptable to Landlord, and name Landlord and Lender as additional dual obligees, and (C) appropriate waivers of mechanics’ and materialmen’s liens shall have been filed; (iii) at the ~~following conditions are met:~~ time of any disbursement, (A) no Event of Default shall ~~have occurred and be continuing;~~ exist, (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 fair market value of the Property as reasonably determined by Lender and (ii) rentable area of the Property is taken, such land is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such land and such taking does not materially impair the existing access to the Property; (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 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 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) 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 Major Leases, (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 shall 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) Lender shall be satisfied, in its sole and absolute discretion, that the Restoration of the Property will not be limited or restricted by the terms of the ZLDA; 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~~ being paid ~~for~~ out of the requested disbursement) in connection with the ~~related Restoration item~~ restoration shall have been paid ~~for~~ in full, and (BC) ~~there exist~~ no ~~notices of pendency, stop orders, mechanic’s~~ mechanics’ or ~~materialman~~materialmen’s liens or stop orders or notices of ~~intention to file same,~~ pendency shall have been filed or ~~any other liens~~ threatened against the Leased Premises and remain undischarged or ~~encumbrances of any nature whatsoever on the Property which have not either been~~ fully bonded to the satisfaction of Landlord; (iv) disbursements shall be made no more frequently than once a month and be in an amount not exceeding the cost of the Work completed since the last disbursement, upon receipt of (A) satisfactory evidence, including architects’ certificates, of the stage of completion, the estimated total cost of completion and performance of the Work to date in a good and workmanlike manner in accordance with the contracts, plans and specifications, (B) waivers of liens, (C) contractors’ and subcontractors’ sworn statements as to completed Work and the cost thereof for which payment is requested, (D) a satisfactory bringdown of title insurance, and (E) other evidence of cost and payment so that Landlord and Lender can verify that the amounts disbursed from time to time are represented by Work that is completed, in place and ~~discharged~~ free and clear of ~~record or in the alternative fully insured to the satisfaction~~ mechanics’ and materialmen’s lien claims; (v) each request for disbursement shall be accompanied by a certificate of ~~Lender~~ Tenant, signed by the ~~title company issuing~~ president or a vice president of Tenant, describing the ~~Title Insurance Policy~~Work for which payment is requested, stating the cost incurred in connection therewith, stating that Tenant has not previously received payment for such Work and, upon completion of the Work, also stating that the Work has been fully completed and complies with the applicable requirements of this Lease and with all Legal Requirements; (vi) Landlord may retain ten percent (10%) of the Restoration Fund until the Work is fully completed; (vii) if the Restoration Fund is held by Landlord, the Restoration Fund shall not be commingled with Landlord’s other funds and shall not bear interest; and (viii) such other reasonable conditions as Landlord or Lender may impose; including without limitation, if the costs of restoration exceed One Million Dollars ($1,000,000) and Landlord so requests, a requirement that Tenant hire a casualty consultant. (~~iii~~b) ~~All plans~~ Prior to commencement of restoration and ~~specifications required in connection with~~ at any time during restoration, if the estimated cost of completing the restoration Work free and clear of all liens, as determined by Landlord, exceeds the amount of the Net Award available for such restoration, the amount of such excess shall, upon demand by Landlord, be paid by Tenant to Landlord to be added to the Restoration ~~shall be subject to prior review and acceptance in all respects~~ Fund. Any sum so added 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 Tenant which remains in the Restoration Fund upon completion of restoration shall be ~~subject~~ refunded to ~~prior review and acceptance by Lender and~~ Tenant. For purposes of determining 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 source of ~~Default exists, (b) Borrower promptly and with commercially reasonable diligence negotiates a settlement of any such claims and (c) the insurer~~ funds with respect to the ~~Policy under which such claim is brought has not raised~~ disposition of funds remaining after the completion of restoration, the Net Award shall be deemed to be disbursed prior to 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 Casualtyamount added by Tenant. (ivc) 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 If any ~~contractor, subcontractor or materialman engaged~~ sum remains in the Restoration as Fund after completion of the ~~date upon which~~ restoration and any refund to Tenant pursuant to Paragraph 19(b), such sum (the ~~Casualty Consultant certifies to Lender that the contractor~~“Remaining Sum”) shall be retained by Landlord or, 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 if required by a Note or Mortgage, paid by Landlord to a 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: Lease Agreement (Claires Stores Inc)

Common use of Restoration Clause in Contracts