Rollover Reserve. 3.5.1 For so long as an Event of Default is continuing, on the first Payment after the occurrence of such Event of Default, and on each Payment Date during the continuation of an Event of Default, Borrower shall pay to Lender for transfer into a Subaccount (the “Rollover Reserve Subaccount”) the sum of $16,800, subject to Section 3.12 below. All such funds may be used to pay Approved Leasing Expenses as set forth below. Lender shall refund to Borrower all amounts remaining on deposit in the Rollover Reserve Subaccount when such Event of Default has been cured and no other Event of Default has occurred and is continuing. 3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, disburse funds held in the Rollover Reserve Subaccount to Borrower, within fifteen (15) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is for an Approved Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work associated with such Approved Leasing Expense; and (iii) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying (1) that such funds will be used only to pay (or reimburse Borrower for) Approved Leasing Expenses and a description thereof, (2) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid in full, (3) that the same has not been the subject of a previous disbursement, and (4) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing Expenses, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor. 3.5.3 Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided no Default or Event of Default is continuing, upon Lender’s receipt of satisfactory evidence that all Approved Leasing Expenses incurred in connection with re-tenanting the space that was the subject of the termination (and any other expenses in connection with the re-tenanting of the applicable space) have been paid in full (which evidence may include (i) a letter or certification from the applicable broker, if any, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate executed by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) remaining in the Rollover Reserve Subaccount shall be disbursed to Borrower; provided, however, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, and all such funds shall instead be deposited into the Deposit Account, to be applied in accordance with this Agreement.
Appears in 2 contracts
Samples: Loan Agreement (Hines Global REIT, Inc.), Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Rollover Reserve. 3.5.1 For so long as an Event of Default is continuing, Commencing on the first Payment after the occurrence of such Event of Default, Date and continuing thereafter on each monthly Payment Date during under the continuation of an Event of DefaultNote, Borrower shall pay to Lender, concurrently with and in addition to the monthly payment due under the Note and until the Debt is fully paid and performed, a deposit into a reserve (the “Rollover Reserve”) in an amount equal to $9,580.91 per month. Borrower shall also pay to Lender for transfer into a Subaccount (the “Rollover Reserve Subaccount”) the sum of $16,800, subject to Section 3.12 below. All such funds may be used to pay Approved Leasing Expenses as set forth below. Lender shall refund to Borrower all amounts remaining on deposit in the Rollover Reserve Subaccount when such Event all payments received from tenants in connection with the early termination or cancellation of Default has been cured any Leases, including fees, penalties and commissions. Provided that no other Event of Default has occurred and is continuing.
3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within fifteen (15) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is for an Approved Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work associated with such Approved Leasing Expense; and (iii) the request for disbursement is accompanied by (A) an Officerofficer’s Certificate certificate from an authorized officer of the Borrower certifying (1v) that such funds will be used only to pay (or reimburse Borrower for) Approved Leasing Expenses and a description thereof, (2w) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtednessdisbursement) have been paid in full, (3x) that the same has not been the subject of a previous disbursement, and (4y) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing ExpensesExpenses and (z) that any construction work associated with such Approved Expenses has been completed in a good and workmanlike manner and in accordance with all applicable legal requirements, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor.
3.5.3 Borrower shall also pay , (C) copies of appropriate lien waivers or other evidence of payment satisfactory to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided no Default or Event of Default is continuing, upon Lender’s receipt of satisfactory evidence that all Approved Leasing Expenses incurred in connection with reany construction work associated with such Approved Expenses and (D) at Lender’s option, a title search for the Property indicating that it is free from all liens not previously approved by Lender. Any such disbursement of more than $10,000 to pay (rather than reimburse) Approved Expenses may, at Lender’s option, be made by joint check payable to Borrower and the payee of such Approved Expenses. For the purposes hereof an “Approved Expense” shall mean the actual out-tenanting of-pocket expenses incurred by Borrower and payable to third parties that are not affiliates of Borrower or any Indemnitor in completing any capital improvements to the property or in leasing space that was at the subject of Premises pursuant to Leases entered into in accordance with the termination Loan Documents, including brokerage commissions and tenant improvements, which expenses (and any other expenses i) are (A) specifically approved by Lender in connection with the re-tenanting of approving the applicable spaceLease, (B) have been paid incurred in full (which evidence may include (i) a letter or certification from the applicable broker, if any, that all brokerage commissions payable ordinary course of business and on market terms and conditions in connection therewith have been paid with Leases which do not require Lender’s approval under the Loan Documents, or (C) otherwise approved by Lender, which approval shall not be unreasonably withheld or delayed, and (ii) an estoppel certificate are substantiated by executed by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) remaining in the Rollover Reserve Subaccount shall be disbursed to Borrower; provided, however, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, documents and all such funds shall instead be deposited into the Deposit Account, to be applied in accordance with this Agreementbrokerage agreements.
Appears in 1 contract
Samples: Deed to Secure Debt, Security Agreement and Fixture Filing (NNN Healthcare/Office REIT, Inc.)
Rollover Reserve. 3.5.1 For so long as an Event of Default is continuing, on the first Payment after the occurrence of such Event of Default, and on each Payment Date during the continuation of an Event of Default, Borrower shall pay to Lender for $13,880,000 on the date hereof (the “Initial Rollover Deposit”), and Lender shall transfer such funds into a Subaccount (the “Rollover Reserve Subaccount”). Borrower shall also pay to Lender (for deposit into the Rollover Reserve Subaccount) all Lease Termination Payments received by Borrower with respect to Material Leases; provided, however, once Borrower has provided to Lender evidence reasonably acceptable to Lender that the sum space under the Lease that was the subject of $16,800, subject to Section 3.12 below. All such funds may be used to pay Lease Termination Payment has been re-tenanted and all Approved Leasing Expenses as set forth below. in connection with such space have been paid, Lender shall refund to Borrower all amounts remaining on deposit in the Rollover Reserve Subaccount when such (provided no Event of Default has been cured and is then continuing) disburse to Borrower any remaining portion of the subject Lease Termination Payment. Provided that no other Event of Default has occurred and is continuing.
3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within fifteen (15) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is for an Approved Leasing Expense; (ii) with respect to disbursements in excess of $100,000, Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work associated with such an Approved Leasing Expense; and (iii) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying (1) that such funds will be used only to pay (or reimburse Borrower for) an Approved Leasing Expenses Expense, and a description thereof, (2) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid in full, (3) that the same has not been the subject of a previous disbursement, and (4) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing Expenses, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor.
3.5.3 . Any such disbursement of more than $100,000 to pay (rather than reimburse) Approved Leasing Expenses may, at Lender’s option, be made by joint check payable to Borrower shall also pay to and the payee of such Approved Leasing Expenses. On the date on which Lender has determined that the Property has achieved a Debt Service Coverage Ratio of at least 1.10:1 for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided two (2) consecutive Calculation Dates, provided no Default or Event of Default is then continuing, upon Lender’s receipt an amount equal to the lesser of satisfactory evidence that all Approved Leasing Expenses incurred in connection with re-tenanting the space that was the subject of the termination (and any other expenses in connection with the re-tenanting of the applicable spacex) have been paid in full (which evidence may include (i) a letter or certification from the applicable broker, if any, that all brokerage commissions payable in connection therewith have been paid $6,600,000 and (iiy) an estoppel certificate executed by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) funds then remaining in the Rollover Reserve Subaccount (other than funds constituting Lease Termination Payments) not previously disbursed or applied shall be disbursed released to Borrower; provided. In calculating the Debt Service Coverage Ratio solely for purposes of determining whether or not funds may be released from the Rollover Reserve Subaccount as contemplated by the preceding sentence, however, if a Cash Management Period is then continuing, then no the Net Operating Income component of such funds calculation shall be disbursed to Borrower, and all such funds shall instead be deposited computed without taking into account the Deposit Account, to be applied in accordance with this Agreementrent payable under the Master Lease.
Appears in 1 contract
Rollover Reserve. 3.5.1 For so long as an Event (a) On the date hereof, Borrower shall pay into a reserve (the “Rollover Reserve”) the sum of Default is continuing, on the first Payment after the occurrence of such Event of Default, and on each Payment Date during the continuation of an Event of Default$170,000.00. Thereafter, Borrower shall pay to Lender for transfer into a Subaccount (the “Rollover Reserve Subaccount”) the sum of $16,8008,333.33 on each Payment Date, subject provided, however, that Borrower shall not be required to Section 3.12 below. All make deposits to the Rollover Reserve in any month to the extent that, after deducting therefrom any pending requests for disbursements from the Rollover Reserve, such funds may be used to pay Approved Leasing Expenses as set forth below. Lender shall refund to Borrower all amounts remaining on deposit would increase the balance in the Rollover Reserve Subaccount when such Event above $620,000.00. Borrower shall also pay to Lender for transfer into the Rollover Reserve all payments received from tenants in connection with the early termination or cancellation of Default has been cured any Leases, including fees, penalties and commissions. If Lender determines in its reasonable judgment that the funds in the Rollover Reserve will be insufficient to pay (or in excess of) the amounts due or to become due for Approved Leasing Expenses (as hereinafter defined), Lender may increase (or decrease) the monthly contribution required to be made by Borrower to the Rollover Reserve. Provided that no other Event of Default has occurred and is continuing.
3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within fifteen (15) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is for an Approved Leasing ExpenseExpense relating to the Cellco Replacement Event (as defined below); (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work associated with such Approved Leasing ExpenseExpense relating to the Cellco Replacement Event; and (iii) the request for disbursement is accompanied by (A) an Officerofficer’s Certificate certificate from an authorized officer of the Borrower certifying (1v) that such funds will be used only to pay (or reimburse Borrower for) such Approved Leasing Expenses and a description thereof, (2w) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtednessdisbursement) have been paid in full, (3x) that the same has not been the subject of a previous disbursement, and (4y) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing ExpensesExpenses and (z) that any construction work associated with such Approved Leasing Expenses relating to the Cellco Replacement Event has been completed in a good and workmanlike manner and in accordance with all applicable legal requirements, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor.
3.5.3 Borrower shall also pay , (C) copies of appropriate lien waivers or other evidence of payment satisfactory to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided no Default or Event of Default is continuing, upon Lender’s receipt of satisfactory evidence that all in connection with any construction work associated with such Approved Leasing Expenses and (D) at Lender’s option, a title search for the Property indicating that it is free from all liens not previously approved by Lender. Any such disbursement of more than $10,000 to pay (rather than reimburse) Approved Leasing Expenses may, at Lender’s option, be made by joint check payable to Borrower and the payee of such Approved Leasing Expenses. For the purposes hereof an “Approved Leasing Expense” shall mean the actual out-of-pocket expenses incurred by Borrower and payable to third parties that are not affiliates of Borrower or any Indemnitor in leasing space at the Premises pursuant to Leases entered into in accordance with the Loan Documents, including brokerage commissions and tenant improvements, which expenses (i) are (A) specifically approved by Lender in connection with re-tenanting approving the space that was applicable Lease, (B) incurred in the subject ordinary course of the termination (business and any other expenses on market terms and conditions in connection with Leases which do not require Lender’s approval under the re-tenanting of the applicable space) have been paid in full (which evidence may include (i) a letter or certification from the applicable brokerLoan Documents, if any, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate executed by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) remaining in the Rollover Reserve Subaccount shall be disbursed to Borrower; provided, however, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, and all such funds shall instead be deposited into the Deposit Account, to be applied in accordance with this Agreement.or
Appears in 1 contract
Samples: Mortgage, Security Agreement and Fixture Filing (Mack Cali Realty Corp)
Rollover Reserve. 3.5.1 For so long as an Event Contemporaneously with the execution hereof, Borrower has established with Lender a reserve (the “Rollover Reserve”) in the amount of Default is continuing$1,100,000 (the “Initial Deposit”) by depositing such amount with Lender. In addition to the foregoing, on if at any time during the first Payment after Loan term the occurrence balance of such Event of Defaultthe Rollover Reserve falls below $250,000 (the “Floor Amount”), and Borrower shall commence paying to Lender $9,169.17 on each Payment Date during to be deposited into the continuation Rollover Reserve (the “Monthly Deposit”). At such time as the balance of an Event the Rollover Reserve again equals or exceeds the Floor Amount, Borrower may cease making Monthly Deposits to the Rollover Reserve; provided, however, if at any time the balance of Defaultthe Rollover Reserve again falls below the Floor Amount, Borrower shall recommence making the Monthly Deposit until such time as the balance of the Rollover Reserve again equals or exceeds the Floor Amount. In addition to the foregoing, Borrower shall also pay to Lender for transfer into a Subaccount (the “Rollover Reserve Subaccount”) all payments received from tenants in connection with the sum early termination or cancellation of $16,800any Leases, subject to Section 3.12 belowincluding fees, penalties and commissions. All such If Lender determines in its reasonable judgment that the funds may be used to pay Approved Leasing Expenses as set forth below. Lender shall refund to Borrower all amounts remaining on deposit in the Rollover Reserve Subaccount when such Event will be insufficient to pay (or in excess of) the amounts due or to become due for Approved Leasing Expenses (as hereinafter defined), Lender may increase (or decrease) the Floor Amount or the amount of Default has been cured and the Monthly Deposit required to be made by Borrower to the Rollover Reserve. Provided that no other Event of Default has occurred and is continuing.
3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within fifteen (15) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is for an Approved Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work associated with such Approved Leasing Expense; and (iii) the request for disbursement is accompanied by (A) an Officerofficer’s Certificate certificate from an authorized officer of the Borrower certifying (1v) that such funds will be used only to pay (or reimburse Borrower for) Approved Leasing Expenses and a description thereof, (2w) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtednessdisbursement) have been paid in full, (3x) that the same has not been the subject of a previous disbursement, and (4y) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing ExpensesExpenses and (z) that any construction work associated with such Approved Leasing Expenses has been completed in a good and workmanlike manner and in accordance with all applicable legal requirements, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor.
3.5.3 Borrower shall also pay , (C) copies of appropriate lien waivers or other evidence of payment satisfactory to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided no Default or Event of Default is continuing, upon Lender’s receipt of satisfactory evidence that all in connection with any construction work associated with such Approved Leasing Expenses and (D) at Lender’s option, a title search for the Property indicating that it is free from all liens not previously approved by Lender. Any such disbursement of more than $10,000 to pay (rather than reimburse) Approved Leasing Expenses may, at Lender’s option, be made by joint check payable to Borrower and the payee of such Approved Leasing Expenses. For the purposes hereof an “Approved Leasing Expense” shall mean the actual out-of-pocket expenses incurred by Borrower and payable to third parties that are not affiliates of Borrower or any Indemnitor in leasing space at the Premises pursuant to Leases entered into in accordance with the Loan Documents, including brokerage commissions and tenant improvements, which expenses (i) are (A) specifically approved by Lender in connection with re-tenanting approving the space that was applicable Lease, (B) incurred in the subject ordinary course of the termination (business and any other expenses on market terms and conditions in connection with Leases which do not require Lender’s approval under the re-tenanting of the applicable spaceLoan Documents, or (C) have been paid in full (otherwise approved by Lender, which evidence may include (i) a letter approval shall not be unreasonably withheld or certification from the applicable brokerdelayed, if any, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate are substantiated by executed by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) remaining in the Rollover Reserve Subaccount shall be disbursed to Borrower; provided, however, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, documents and all such funds shall instead be deposited into the Deposit Account, to be applied in accordance with this Agreementbrokerage agreements.
Appears in 1 contract
Samples: Deed of Trust, Security Agreement and Fixture Filing (NNN Healthcare/Office REIT, Inc.)
Rollover Reserve. 3.5.1 [Intentionally deleted.]
3.5.2 For so long as an Event of Default is continuing, on the first Payment after the occurrence of such Event of Default, and on each Payment Date during the continuation of an Event of Default, Borrower shall pay to Lender for transfer into a Subaccount (the “Rollover Reserve Subaccount”) the sum of $16,80018,900, subject to Section 3.12 below. All such funds may be used to pay Approved Leasing Major Lease Expenses as set forth below. Lender shall refund to Borrower all amounts remaining on deposit in the Rollover Reserve Subaccount when such Event of Default has been cured and no other Event of Default has occurred and is continuing.
3.5.2 3.5.3 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, disburse funds held in the Rollover Reserve Subaccount to Borrower, within fifteen (15) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is for an Approved Leasing Major Lease Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work associated with such Approved Leasing Major Lease Expense; and (iii) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying (1) that such funds will be used only to pay (or reimburse Borrower for) Approved Leasing Major Lease Expenses and a description thereof, (2) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Major Lease Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid in full, (3) that the same has not been the subject of a previous disbursement, and (4) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing Major Lease Expenses, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor.
3.5.3 3.5.4 [intentionally deleted]
3.5.5 [intentionally deleted]
3.5.6 Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. .
3.5.7 Provided no Default or Event of Default is continuing, upon Lender’s receipt of satisfactory evidence that all Approved Leasing Expenses incurred in connection with re-tenanting the space that was the subject of the termination (and any other expenses in connection with the re-tenanting of the applicable space) have been paid in full (which evidence may include (i) a letter or certification from the applicable broker, if any, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate executed by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) remaining in the Rollover Reserve Subaccount shall be disbursed to Borrower; provided, however, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, and all such funds shall instead be deposited into the Deposit Account, to be applied in accordance with this Agreement.
Appears in 1 contract
Samples: Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Rollover Reserve. 3.5.1 For so long as an Event of Default is continuing, on the first Payment after the occurrence of such Event of Default, and (a) Borrowers shall pay to Lender on each Payment Date during a Cash Management Period, $3,506.56, which equal to one-twelfth (1/12) of the continuation product obtained by multiplying $0.35 by the aggregate number of an Event rentable square feet of Default, Borrower shall pay to space in the Property. Lender for will transfer such amount into a Subaccount (the “Rollover Reserve Subaccount”) the sum of $16,800, subject ). Borrowers shall also pay to Section 3.12 below. All such funds may be used to pay Approved Leasing Expenses as set forth below. Lender shall refund to Borrower all amounts remaining on deposit in for transfer into the Rollover Reserve Subaccount when such Event of Default has been cured and all Lease Termination Payments received by Borrowers (other than Major Lease Termination Payments, which shall be deposited into the Special Rollover Reserve Subaccount in accordance with Section 3.5.3 hereof).
(b) Provided that no other Event of Default has occurred and is continuing.
3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, shall disburse funds held in the Rollover Reserve Subaccount to BorrowerBorrowers, within fifteen (15) days after the delivery by Borrower Borrowers to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is for an Approved Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s Borrowers’ reasonable expense) performance of any construction work associated with such Approved Leasing Expense; and (iii) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying (1) that such funds will be used only to pay (or reimburse Borrower Borrowers for) Approved Leasing Expenses and a description thereof, (2) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid in full, (3) that the same has not been the subject of a previous disbursement, and (4) that all previous disbursements have been used only to pay (or reimburse Borrower Borrowers for) the previously identified Approved Leasing Expenses, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor.
3.5.3 Borrower shall also pay to Lender for transfer (c) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided no Default or Event of Default is continuingfrom the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be applied, upon at Lender’s receipt election, towards either (i) subject to the rights of satisfactory evidence Borrowers under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (ii) debt service shortfalls that all may arise as a result of a termination of such Lease (and Borrowers hereby authorize Lender to disburse to itself any such amounts without any request therefor by Borrowers) or (iii) funding any Approved Leasing Expenses incurred in connection with re-tenanting the space that was the subject of the termination (and any other expenses which are anticipated to occur in connection with the re-tenanting of the applicable space) have been paid in full space under the Lease that was the subject of such termination (which evidence may include (i) a letter or certification from the applicable broker, if any, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate executed by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) remaining in the Rollover Reserve Subaccount shall be disbursed to Borrower; provided, however, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, and all such funds shall instead be deposited into the Deposit Account, to be applied in accordance with this Agreementthe terms and conditions of Section 3.5.1(b) above).
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital New York City REIT, Inc.)
Rollover Reserve. 22
3.5.1 For so long as an Event of Default is continuing, on the first Payment after the occurrence of such Event of Default, and on each Payment Date during the continuation of an Event of Default, Borrower shall pay to Lender for transfer into a Subaccount (the “Rollover Reserve Subaccount”) the sum of $16,800, subject to Section 3.12 below. All such funds may be used to pay Approved Leasing Expenses as set forth below. Lender shall refund to Borrower all amounts remaining on deposit in the Rollover Reserve Subaccount when such Event of Default has been cured and no other Event of Default has occurred and is continuing.. 22
3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, disburse funds held in the Rollover Reserve Subaccount to Borrower, within fifteen (15) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is for an Approved Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work associated with such Approved Leasing Expense; and (iii) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying (1) that such funds will be used only to pay (or reimburse Borrower for) Approved Leasing Expenses and a description thereof, (2) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid in full, (3) that the same has not been the subject of a previous disbursement, and (4) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing Expenses, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor.therefor 22
3.5.3 Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided no Default or Event of Default is continuing, upon Lender’s receipt of satisfactory evidence that all Approved Leasing Expenses incurred in connection with re-tenanting the space that was the subject of the termination (and any other expenses in connection with the re-tenanting of the applicable space) have been paid in full (which evidence may include (i) a letter or certification from the applicable broker, if any, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate executed by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) remaining in the Rollover Reserve Subaccount shall be disbursed to Borrower; provided, however, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, and all such funds shall instead be deposited into the Deposit Account, to be applied in accordance with this Agreement.Agreement 22
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Rollover Reserve. 3.5.1 For so long as an Event of Default is continuing, on the first Payment after the occurrence of such Event of Default, and (a) Borrower shall pay to Lender $18,750.00 on each Payment Date during (the continuation of an Event of Default“Rollover Reserve”) provided, however, that Borrower shall not be required to make deposits to the Rollover Reserve in any month to the extent that, after deducting therefrom any pending requests for disbursements from the Rollover Reserve, such deposit would increase the balance in the Rollover Reserve above $1,900,000.00. Borrower shall also pay to Lender for transfer into a Subaccount (the “Rollover Reserve Subaccount”) all payments received from tenants in connection with the sum early termination or cancellation of $16,800any Leases, subject to Section 3.12 belowincluding fees, penalties and commissions. All such If Lender determines in its reasonable judgment that the funds may be used to pay Approved Leasing Expenses as set forth below. Lender shall refund to Borrower all amounts remaining on deposit in the Rollover Reserve Subaccount when such Event of Default has been cured and will be insufficient to pay (or in excess of) the amounts due or to become due for Approved Leasing Expenses (as hereinafter defined), Lender may increase (or decrease) the monthly contribution required to be made by Borrower to the Rollover Reserve. Provided that no other Event of Default has occurred and is continuing.
3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within fifteen (15) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is for an Approved Leasing ExpenseExpense relating to the Sony Replacement Event (as defined below); (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work associated with such Approved Leasing ExpenseExpense relating to the Sony Replacement Event; and (iii) the request for disbursement is accompanied by (A) an Officerofficer’s Certificate certificate from an authorized officer of the Borrower certifying (1v) that such funds will be used only to pay (or reimburse Borrower for) such Approved Leasing Expenses and a description thereof, (2w) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtednessdisbursement) have been paid in full, (3x) that the same has not been the subject of a previous disbursement, and (4y) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing ExpensesExpenses and (z) that any construction work associated with such Approved Leasing Expenses relating to the Sony Replacement Event has been completed in a good and workmanlike manner and in accordance with all applicable legal requirements, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor, (C) copies of appropriate lien waivers or other evidence of payment satisfactory to Lender in connection with any construction work associated with such Approved Leasing Expenses and (D) at Lender’s option, a title search for the Property indicating that it is free from all liens not previously approved by Lender. Any such disbursement of more than $10,000 to pay (rather than reimburse) Approved Leasing Expenses may, at Lender’s option, be made by joint check payable to Borrower and the payee of such Approved Leasing Expenses. For the purposes hereof an “Approved Leasing Expense” shall mean the actual out-of-pocket expenses incurred by Borrower and payable to third parties that are not affiliates of Borrower or any Indemnitor in leasing space at the Premises pursuant to Leases entered into in accordance with the Loan Documents, including brokerage commissions and tenant improvements, which expenses (i) are (A) specifically approved by Lender in connection with approving the applicable Lease, (B) incurred in the ordinary course of business and on market terms and conditions in connection with Leases which do not require Lender’s approval under the Loan Documents, or (C) otherwise approved by Lender, which approval shall not be unreasonably withheld or delayed, and (ii) are substantiated by executed Lease documents and brokerage agreements.
3.5.3 Borrower shall also pay (b) In the event of evidence satisfactory to Lender for transfer of a Sony Replacement Event, Lender shall disburse all remaining funds then-held by Lender in the Rollover Reserve to Borrower (after application of same, in accordance with Section 3.6(a) above), within fifteen (15) days after the delivery by Borrower to Lender of a request therefor.
(c) In connection with the sums deposited into the Rollover Reserve Subaccount all Lease Termination Payments received pursuant to this Section 3.6, at the end of each calendar year, Borrower shall have the option upon thirty (30) days prior written notice to Lender, to deliver or cause to be delivered to Lender and deposited into the Rollover Reserve a clean, unconditional, irrevocable and freely transferable, sight-draft, issued by Borrowera bank having a rating of “AA” or better by Standard & Poor’s (or equivalent rating agency) and being acceptable to Lender (in its sole and absolute discretion), having an initial expiry date of not earlier than one year after the delivery of such letter of credit, containing an “evergreen” provision for renewals of successive twelve (12) month terms, and otherwise in form and substance acceptable to Lender (“Letter of Credit”) equal to the amount of cash then on deposit in the Rollover Reserve. Provided Upon the delivery of the Letter of Credit to Lender, Lender shall, within fifteen (15) days receipt of such Letter of Credit, deliver to Borrower the cash funds then-held in the Rollover Reserve equal to the amount of the Letter of Credit, which disbursement shall in no Default or event be of more funds than Lender then-holds in the Rollover Reserve in cash sums. At any time after delivery of the Letter of Credit, (i) after the occurrence of an Event of Default, Lender shall have the right to draw upon the Letter of Credit, at Lender’s option, and, from the proceeds thereof (which shall be deposited in the Rollover Reserve), advance to itself any amounts held therein pursuant to Lender’s rights and remedies under the Loan Documents, and (ii) so long as no Event of Default has occurred and is continuingcontinuing and if Borrower requests a disbursement from the Rollover Reserve in accordance with Section 3.6(a) at a time when there is a Letter of Credit outstanding in the amount of such disbursement request but for which there are insufficient cash funds then-held in the Rollover Reserve, at Borrower’s request, Borrower shall have the right to request that Lender draw upon the Letter of Credit, and, from the proceeds thereof (which shall be deposited in the Rollover Reserve), advance to Borrower the amount of the requested disbursement (subject to fulfillment of the conditions related to such disbursement set forth in this Section 3.6) for which there is insufficient cash funds then-held in the Rollover Reserve but sufficient funds held in the Letter of Credit. Notwithstanding anything contained herein to the contrary, the delivery of the Letter of Credit to Lender shall in no way waive Borrower’s obligation to continue to make the monthly deposits into the Rollover Reserve in accordance with this Section 3.6, and in no event shall the delivery of a Letter of Credit to Lender be deemed a waiver or termination of such obligation. In connection with the Letter of Credit, Borrower shall enter into a letter of credit agreement with Lender pledging the Letter of Credit to Lender and governing the terms and conditions of such Letter of Credit and otherwise in form and substance satisfactory to Lender, in Lender’s receipt of satisfactory evidence that sole discretion (the “LC Agreement”). Borrower shall pay any and all Approved Leasing Expenses fees and costs incurred in connection with re-tenanting the space that was the subject of the termination (and any other expenses by Lender in connection with the re-tenanting any of the applicable space) have been paid in full (which evidence may include (i) a letter or certification from LC Agreement and/or the applicable brokerLetter of Credit, if anyincluding, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate executed by each applicable tenant which certifies that all contingencies under such Lease to without limitation, the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion review of the applicable Lease Termination Payment LC Agreement and/or the Letter of Credit and the preparation, execution and delivery of the LC Agreement and/or the Letter of Credit (if anyincluding, without limitation, attorneys’ fees).
(d) remaining in the Rollover Reserve Subaccount shall be disbursed to Borrower; provided, however, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, and all such funds shall instead be deposited into the Deposit Account, to be applied in accordance In connection with this Agreement.Section 3.6, the following definitions shall apply with respect to a Sony Replacement Event:
Appears in 1 contract
Samples: Mortgage, Security Agreement and Fixture Filing (Mack Cali Realty Corp)
Rollover Reserve. 3.5.1 For so long as an Event of Default is continuing, on the first Payment after the occurrence of such Event of Default, and (a) Borrower shall pay to Lender $12,326.92 on each Payment Date during (the continuation of an Event of Default, “Rollover Reserve”). Borrower shall also pay to Lender for transfer into a Subaccount (the “Rollover Reserve Subaccount”) all payments received from tenants in connection with the sum early termination or cancellation of $16,800any Leases, subject to Section 3.12 belowincluding fees, penalties and commissions. All such If Lender determines in its reasonable judgment that the funds may be used to pay Approved Leasing Expenses as set forth below. Lender shall refund to Borrower all amounts remaining on deposit in the Rollover Reserve Subaccount when such Event of Default has been cured and will be insufficient to pay (or in excess of) the amounts due or to become due for Approved Leasing Expenses (as hereinafter defined), Lender may increase (or decrease) the monthly contribution required to be made by Borrower to the Rollover Reserve. Provided that no other Event of Default has occurred and is continuing.
3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within fifteen (15) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is for an Approved Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work associated with such Approved Leasing Expense; and (iii) the request for disbursement is accompanied by (A) an Officerofficer’s Certificate certificate from an authorized officer of the Borrower certifying (1v) that such funds will be used only to pay (or reimburse Borrower for) Approved Leasing Expenses and a description thereof, (2w) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtednessdisbursement) have been paid in full, (3x) that the same has not been the subject of a previous disbursement, and (4y) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing ExpensesExpenses and (z) that any construction work associated with such Approved Leasing Expenses has been completed in a good and workmanlike manner and in accordance with all applicable legal requirements, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor, (C) copies of appropriate lien waivers or other evidence of payment satisfactory to Lender in connection with any construction work associated with such Approved Leasing Expenses and (D) at Lender’s option, a title search for the Property indicating that it is free from all liens not previously approved by Lender. Any such disbursement of more than $10,000 to pay (rather than reimburse) Approved Leasing Expenses may, at Lender’s option, be made by joint check payable to Borrower and the payee of such Approved Leasing Expenses. For the purposes hereof an “Approved Leasing Expense” shall mean the actual out-of-pocket expenses incurred by Borrower and payable to third parties that are not affiliates of Borrower or any Indemnitor in leasing space at the Premises pursuant to Leases entered into in accordance with the Loan Documents, including brokerage commissions and tenant improvements, which expenses (i) are (A) specifically approved by Lender in connection with approving the applicable Lease, (B) incurred in the ordinary course of business and on market terms and conditions in connection with Leases which do not require Lender’s approval under the Loan Documents, or (C) otherwise approved by Lender, which approval shall not be unreasonably withheld or delayed, and (ii) are substantiated by executed Lease documents and brokerage agreements.
3.5.3 Borrower shall also pay to Lender for transfer (b) In connection with the sums deposited into the Rollover Reserve Subaccount all Lease Termination Payments received pursuant to this Section 3.6, at the end of each calendar year, Borrower shall have the option upon thirty (30) days prior written notice to Lender, to deliver or cause to be delivered to Lender and deposited into the Rollover Reserve a clean, unconditional, irrevocable and freely transferable, sight-draft, issued by Borrowera bank having a rating of “AA” or better by Standard & Poor’s (or equivalent rating agency) and being acceptable to Lender (in its sole and absolute discretion), having an initial expiry date of not earlier than one year after the delivery of such letter of credit, containing an “evergreen” provision for renewals of successive twelve (12) month terms, and otherwise in form and substance acceptable to Lender (“Letter of Credit”) equal to the amount of cash then on deposit in the Rollover Reserve. Provided Upon the delivery of the Letter of Credit to Lender, Lender shall, within fifteen (15) days receipt of such Letter of Credit, deliver to Borrower the cash funds then-held in the Rollover Reserve equal to the amount of the Letter of Credit, which disbursement shall in no Default or event be of more funds than Lender then-holds in the Rollover Reserve in cash sums. At any time after delivery of the Letter of Credit, (i) after the occurrence of an Event of Default, Lender shall have the right to draw upon the Letter of Credit, at Lender’s option, and, from the proceeds thereof (which shall be deposited in the Rollover Reserve), advance to itself any amounts held therein pursuant to Lender’s rights and remedies under the Loan Documents, and (ii) so long as no Event of Default has occurred and is continuingcontinuing and if Borrower requests a disbursement from the Rollover Reserve in accordance with Section 3.6(a) at a time when there is a Letter of Credit outstanding in the amount of such disbursement request but for which there are insufficient cash funds then-held in the Rollover Reserve, at Borrower’s request, Borrower shall have the right to request that Lender draw upon the Letter of Credit, and, from the proceeds thereof (which shall be deposited in the Rollover Reserve), advance to Borrower the amount of the requested disbursement (subject to fulfillment of the conditions related to such disbursement set forth in this Section 3.6) for which there is insufficient cash funds then-held in the Rollover Reserve but sufficient funds held in the Letter of Credit. Notwithstanding anything contained herein to the contrary, the delivery of the Letter of Credit to Lender shall in no way waive Borrower’s obligation to continue to make the monthly deposits into the Rollover Reserve in accordance with this Section 3.6, and in no event shall the delivery of a Letter of Credit to Lender be deemed a waiver or termination of such obligation. In connection with the Letter of Credit, Borrower shall enter into a letter of credit agreement with Lender pledging the Letter of Credit to Lender and governing the terms and conditions of such Letter of Credit and otherwise in form and substance satisfactory to Lender, in Lender’s receipt of satisfactory evidence that sole discretion (the “LC Agreement”). Borrower shall pay any and all Approved Leasing Expenses fees and costs incurred in connection with re-tenanting the space that was the subject of the termination (and any other expenses by Lender in connection with the re-tenanting any of the applicable space) have been paid in full (which evidence may include (i) a letter or certification from LC Agreement and/or the applicable brokerLetter of Credit, if anyincluding, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate executed by each applicable tenant which certifies that all contingencies under such Lease to without limitation, the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion review of the applicable Lease Termination Payment LC Agreement and/or the Letter of Credit and the preparation, execution and delivery of the LC Agreement and/or the Letter of Credit (if any) remaining in the Rollover Reserve Subaccount shall be disbursed to Borrower; providedincluding, howeverwithout limitation, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, and all such funds shall instead be deposited into the Deposit Account, to be applied in accordance with this Agreementattorneys’ fees).
Appears in 1 contract
Samples: Mortgage, Security Agreement and Fixture Filing (Mack Cali Realty Corp)
Rollover Reserve. 3.5.1 For so long as an Event of Default is continuing, on the first Payment after the occurrence of such Event of Default, and on each Payment Date during the continuation of an Event of Default, Borrower shall pay to Lender for $4,070,000 on the date hereof (the “Initial Rollover Deposit”), and Lender shall transfer such funds into a Subaccount (the “Rollover Reserve Subaccount”). Additionally, on each Payment Date commencing on June 6, 2009, Borrower shall pay to Lender (for deposit into the Rollover Reserve Subaccount) $47,148 (one-twelfth (1/12th) of the sum product obtained by multiplying $1.00 by the aggregate number of $16,800rentable square feet of space in the Property). Borrower shall also pay to Lender (for deposit into the Rollover Reserve Subaccount) all Lease Termination Payments received by Borrower with respect to Material Leases; provided, however, once Borrower has provided to Lender evidence reasonably acceptable to Lender that the space under the Lease that was the subject to Section 3.12 below. All of such funds may be used to pay Lease Termination Payment has been re-tenanted and all Approved Leasing Expenses as set forth below. in connection with such space have been paid, Lender shall refund to Borrower all amounts remaining on deposit in the Rollover Reserve Subaccount when such (provided no Event of Default has been cured and is then continuing) disburse to Borrower any remaining portion of the subject Lease Termination Payment. Provided that no other Event of Default has occurred and is continuing.
3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within fifteen (15) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is for an Approved Leasing Expense; (ii) with respect to disbursements in excess of $100,000, Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work associated with such an Approved Leasing Expense; and (iii) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying (1) that such funds will be used only to pay (or reimburse Borrower for) an Approved Leasing Expenses Expense, and a description thereof, (2) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid in full, (3) that the same has not been the subject of a previous disbursement, and (4) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing Expenses, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor.
3.5.3 Borrower shall also . Any such disbursement of more than $100,000 to pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided no Default or Event of Default is continuing, upon Lender’s receipt of satisfactory evidence that all (rather than reimburse) Approved Leasing Expenses incurred in connection with re-tenanting may, at Lender’s option, be made by joint check payable to Borrower and the space that was the subject payee of the termination (and any other expenses in connection with the re-tenanting of the applicable space) have been paid in full (which evidence may include (i) a letter or certification from the applicable broker, if any, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate executed by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) remaining in the Rollover Reserve Subaccount shall be disbursed to Borrower; provided, however, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, and all such funds shall instead be deposited into the Deposit Account, to be applied in accordance with this AgreementApproved Leasing Expenses.
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Rollover Reserve. 3.5.1 For so long as an Event of Default is continuing, (a) Borrowers shall pay to Lender (i) $798,196.00 (the “Initial Rollover Deposit”) on the first Payment after date hereof on account of outstanding Approved Leasing Expenses with respect to the occurrence of such Event of Default, Leases set forth on Schedule 20 hereto and (ii) on each Payment Date during a Cash Management Period, an amount initially equal to one-twelfth (1/12) of the continuation product obtained by multiplying $201,575.83 by the aggregate number of an Event rentable square feet of Default, Borrower shall pay to space in the Property. Lender for will transfer such amount into a Subaccount (the “Rollover Reserve Subaccount”) the sum of $16,800, subject ). Borrowers shall also pay to Section 3.12 below. All such funds may be used to pay Approved Leasing Expenses as set forth below. Lender shall refund to Borrower all amounts remaining on deposit in for transfer into the Rollover Reserve Subaccount when such Event of Default has been cured and all Lease Termination Payments received by Borrowers (other than Major Lease Termination Payments, which shall be deposited into the Special Rollover Reserve Subaccount in accordance with Section 3.5.3 hereof).
(b) Provided that no other Event of Default has occurred and is continuing.
3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, shall disburse funds held in the Rollover Reserve Subaccount to BorrowerBorrowers, within fifteen (15) days after the delivery by Borrower Borrowers to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is for an Approved Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s Borrowers’ reasonable expense) performance of any construction work associated with such Approved Leasing Expense; and (iii) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying (1) that such funds will be used only to pay (or reimburse Borrower Borrowers for) Approved Leasing Expenses and a description thereof, (2) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid in full, (3) that the same has not been the subject of a previous disbursement, and (4) that all previous disbursements have been used only to pay (or reimburse Borrower Borrowers for) the previously identified Approved Leasing Expenses, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor.
3.5.3 Borrower shall also pay to Lender for transfer (c) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided no Default or Event of Default is continuingfrom the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be applied, upon at Lender’s receipt election, towards either (i) subject to the rights of satisfactory evidence Borrowers under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (ii) debt service shortfalls that all may arise as a result of a termination of such Lease (and Borrowers hereby authorize Lender to disburse to itself any such amounts without any request therefor by Borrowers) or (iii) funding any Approved Leasing Expenses incurred in connection with re-tenanting the space that was the subject of the termination (and any other expenses which are anticipated to occur in connection with the re-tenanting of the applicable space) have been paid in full space under the Lease that was the subject of such termination (which evidence may include (i) a letter or certification from the applicable broker, if any, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate executed by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) remaining in the Rollover Reserve Subaccount shall be disbursed to Borrower; provided, however, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, and all such funds shall instead be deposited into the Deposit Account, to be applied in accordance with this Agreementthe terms and conditions of Section 3.5.1(b) above).
Appears in 1 contract
Rollover Reserve. 3.5.1 For so long as an Event of Default is continuing, on the first Payment after the occurrence of such Event of Default, and on each Payment Date during the continuation of an Event of Default, . Borrower shall pay to Lender for $12,130,000 on the date hereof (the “Initial Rollover Deposit”), and Lender shall transfer such funds into a Subaccount (the “Rollover Reserve Subaccount”). Additionally, on each Payment Date commencing on June 6, 2009, Borrower shall pay to Lender (for deposit into the Rollover Reserve Subaccount) $110,818 (one-twelfth (1/12th) of the sum product obtained by multiplying $1.00 by the aggregate number of $16,800rentable square feet of space in the Property). Borrower shall also pay to Lender (for deposit into the Rollover Reserve Subaccount) all Lease Termination Payments received by Borrower with respect to Material Leases; provided, however, once Borrower has provided to Lender evidence reasonably acceptable to Lender that the space under the Lease that was the subject to Section 3.12 below. All of such funds may be used to pay Lease Termination Payment has been re-tenanted and all Approved Leasing Expenses as set forth below. in connection with such space have been paid, Lender shall refund to Borrower all amounts remaining on deposit in the Rollover Reserve Subaccount when such (provided no Event of Default has been cured and is then continuing) disburse to Borrower any remaining portion of the subject Lease Termination Payment. Provided that no other Event of Default has occurred and is continuing.
3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within fifteen (15) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is for an Approved Leasing Expense; (ii) with respect to disbursements in excess of $100,000, Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work associated with such an Approved Leasing Expense; and (iii) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying (1) that such funds will be used only to pay (or reimburse Borrower for) an Approved Leasing Expenses Expense, and a description thereof, (2) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid in full, (3) that the same has not been the subject of a previous disbursement, and (4) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing Expenses, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor.
3.5.3 Borrower shall also . Any such disbursement of more than $100,000 to pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided no Default or Event of Default is continuing, upon Lender’s receipt of satisfactory evidence that all (rather than reimburse) Approved Leasing Expenses incurred in connection with re-tenanting may, at Lender’s option, be made by joint check payable to Borrower and the space that was the subject payee of the termination (and any other expenses in connection with the re-tenanting of the applicable space) have been paid in full (which evidence may include (i) a letter or certification from the applicable broker, if any, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate executed by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) remaining in the Rollover Reserve Subaccount shall be disbursed to Borrower; provided, however, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, and all such funds shall instead be deposited into the Deposit Account, to be applied in accordance with this AgreementApproved Leasing Expenses.
Appears in 1 contract
Rollover Reserve. 3.5.1 For so long as an Event of Default is continuing, on the first Payment after the occurrence of such Event of Default, and on each Payment Date during the continuation of an Event of Default, Borrower shall pay to Lender for $4,400,000 on the date hereof (the “Initial Rollover Deposit”), and Lender shall transfer such funds into a Subaccount (the “Rollover Reserve Subaccount”). Additionally, on each Payment Date commencing on the earlier to occur of (x) May 6, 2009 or (y) the sum first Payment Date following the date that the funds constituting the Initial Rollover Deposit have been reduced to $1,000,000, Borrower shall pay to Lender (for deposit into the Rollover Reserve Subaccount) $45,725 (one-twelfth (1/12th) of the product obtained by multiplying $16,8001.25 by the aggregate number of rentable square feet of space in the Property); provided, subject however, Borrower shall only be obligated to Section 3.12 below. All make such funds may be used to pay Approved Leasing Expenses as set forth below. Lender shall refund to Borrower all amounts remaining monthly payment on any Payment Date on which the aggregate amount then on deposit in the Rollover Reserve Subaccount when (excluding any Lease Termination Payments) is below $2,500,000. Borrower shall also pay to Lender (for deposit into the Rollover Reserve Subaccount) all Lease Termination Payments received by Borrower with respect to Material Leases; provided, however, once Borrower has provided to Lender evidence reasonably acceptable to Lender that the space under the Lease that was the subject of such Lease Termination Payment has been re-tenanted and all Approved Leasing Expenses in connection with such space have been paid, Lender shall (provided no Event of Default has been cured and is then continuing) disburse to Borrower any remaining portion of the subject Lease Termination Payment. Provided that no other Event of Default has occurred and is continuing.
3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within fifteen (15) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is for an Approved Leasing Expense; (ii) with respect to disbursements in excess of $100,000, Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work associated with such an Approved Leasing Expense; and (iii) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying (1) that such funds will be used only to pay (or reimburse Borrower for) an Approved Leasing Expenses Expense, and a description thereof, (2) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid in full, (3) that the same has not been the subject of a previous disbursement, and (4) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing Expenses, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor.
3.5.3 Borrower shall also . Any such disbursement of more than $100,000 to pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided no Default or Event of Default is continuing, upon Lender’s receipt of satisfactory evidence that all (rather than reimburse) Approved Leasing Expenses incurred in connection with re-tenanting may, at Lender’s option, be made by joint check payable to Borrower and the space that was the subject payee of the termination (and any other expenses in connection with the re-tenanting of the applicable space) have been paid in full (which evidence may include (i) a letter or certification from the applicable broker, if any, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate executed by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) remaining in the Rollover Reserve Subaccount shall be disbursed to Borrower; provided, however, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, and all such funds shall instead be deposited into the Deposit Account, to be applied in accordance with this AgreementApproved Leasing Expenses.
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Rollover Reserve. 3.5.1 For so long as an Event (a) On December 31, 2018, Borrowers shall pay to Lender $105,000.00 (or such lesser amount reflecting the remaining tenant improvement allowance due and payable to Xxxx with respect to the Xxxx Office Space) on account of Default is continuingoutstanding Approved Leasing Expenses with respect to the Xxxx Office Space, and Lender will transfer such amount into a Subaccount (the "Rollover Reserve Subaccount"); provided, however, that Borrowers shall not be required to make the foregoing payment if, on or before December 31, 2018, Borrowers have delivered to Lender evidence satisfactory to Lender in its reasonable discretion that the first Payment after full amount of the occurrence of such Event of Defaulttenant improvement allowance with respect to the Xxxx Office Space (i.e., and on each Payment Date during the continuation of an Event of Default$105,000.00) has been paid to Xxxx. Additionally, Borrower other than as set forth in Section 3.6.2 with respect to Lease Termination Payments from any Lease Sweep Tenant, Borrowers shall also pay to Lender for transfer into a Subaccount (the “Rollover Reserve Subaccount”) the sum of $16,800, subject to Section 3.12 below. All such funds may be used to pay Approved Leasing Expenses as set forth below. Lender shall refund to Borrower all amounts remaining on deposit in the Rollover Reserve Subaccount when such Event of all Lease Termination Payments received by Borrowers.
(b) Provided that no Default has been cured and no other or Event of Default has occurred and is continuing.
3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, shall disburse funds held in the Rollover Reserve Subaccount to BorrowerBorrowers, within fifteen (15) days after the delivery by Borrower Borrowers to Lender of a request therefor (but not more often than once per month), in increments of at least $5,00010,000, provided that: (i) such disbursement is for an Approved Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s Borrowers' expense) performance of any construction work associated with such Approved Leasing Expense; (iii) with respect to any tenant improvement work, Borrowers shall have furnished to Lender copies of all permits, licenses and approvals required by any Governmental Authority with regard to such work that is the subject of the requested disbursement, whether necessary for commencement, completion, use or otherwise; (iv) with respect to any tenant improvement work, the Retainage shall be retained by Lender and shall be paid over by Lender to Borrowers, provided that no lien claims are then filed against the applicable Property, when all of the requirements for the release of such applicable Retainage have been satisfied pursuant to the terms of the applicable construction contract; and (iiiv) the request for disbursement is accompanied by (A) an Officer’s 's Certificate certifying (1) that such funds will be used only to pay (or reimburse Borrower Borrowers for) Approved Leasing Expenses and a description thereof, (2) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid in full, (3) that the same has not been the subject of a previous disbursement, (4) the aggregate amount disbursed (including the subject disbursement) with respect to any applicable Lease shall not exceed the Maximum Leasing Disbursement Amount applicable to such Lease and (45) that all previous disbursements have been used only to pay (or reimburse Borrower Borrowers for) the previously identified Approved Leasing Expenses, (B) lien waivers or other evidence of payment satisfactory to Lender unless the requested disbursement shall be used to pay for such Approved Leasing Expense directly (and not reimburse Borrowers for the Approved Leasing Expense previously paid for by Borrowers), in which case Borrowers shall be required to deliver such items with respect to the Approved Leasing Expense which was the subject of the previous disbursement and conditional lien waivers with respect to the requested items to be paid for from the requested disbursement and (BC) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor. Any such disbursement of more than $25,000 to pay (rather than reimburse) Approved Leasing Expenses may, at Lender's option, be made by direct check payable to the payee of such Approved Leasing Expenses.
3.5.3 Borrower shall also pay to Lender for transfer (c) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount all shall be applied, at Lender's election, towards either (i) subject to the rights of Borrowers under the applicable Lease, rent arrearages under such Lease Termination Payments received (or to cure any other tenant default under such Lease), (ii) debt service shortfalls that may arise as a result of a termination of such Lease (and Borrowers hereby authorize Lender to disburse to itself any such amounts without any request therefor by Borrower. Provided no Default Borrowers) or Event of Default is continuing, upon Lender’s receipt of satisfactory evidence that all (iii) funding any Approved Leasing Expenses incurred in connection with re-tenanting the space that was the subject of the termination (and any other expenses or Approved Lease Sweep Lease Leasing Expenses, if applicable) which are anticipated to occur in connection with the re-tenanting of the applicable space) have been paid in full space under the Lease that was the subject of such termination (which evidence may include (i) a letter or certification from the applicable broker, if any, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate executed by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) remaining in the Rollover Reserve Subaccount shall be disbursed to Borrower; provided, however, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, and all such funds shall instead be deposited into the Deposit Account, to be applied in accordance with this Agreementthe terms and conditions of Section 3.6.1(b) hereof or Section 3.6.2 hereof, if applicable).
Appears in 1 contract
Samples: Loan Agreement (Parking REIT, Inc.)
Rollover Reserve. 3.5.1 For so long as an Event of Default is continuing, on the first Payment after the occurrence of such Event of Default, and (a) Borrower shall pay to Lender $11,740.00 on each Payment Date during (the continuation of an Event of Default“Rollover Reserve”) provided, however, that Borrower shall not be required to make deposits to the Rollover Reserve in any month to the extent that, after deducting therefrom any pending requests for disbursements from the Rollover Reserve, such deposit would increase the balance in the Rollover Reserve above $1,127,040.00. Borrower shall also pay to Lender for transfer into a Subaccount (the “Rollover Reserve Subaccount”) all payments received from tenants in connection with the sum early termination or cancellation of $16,800any Leases, subject to Section 3.12 belowincluding fees, penalties and commissions. All such If Lender determines in its reasonable judgment that the funds may be used to pay Approved Leasing Expenses as set forth below. Lender shall refund to Borrower all amounts remaining on deposit in the Rollover Reserve Subaccount when such Event of Default has been cured and will be insufficient to pay (or in excess of) the amounts due or to become due for Approved Leasing Expenses (as hereinafter defined), Lender may increase (or decrease) the monthly contribution required to be made by Borrower to the Rollover Reserve. Provided that no other Event of Default has occurred and is continuing.
3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within fifteen (15) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is for an Approved Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work associated with such Approved Leasing Expense; and (iii) the request for disbursement is accompanied by (A) an Officerofficer’s Certificate certificate from an authorized officer of the Borrower certifying (1v) that such funds will be used only to pay (or reimburse Borrower for) Approved Leasing Expenses and a description thereof, (2w) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtednessdisbursement) have been paid in full, (3x) that the same has not been the subject of a previous disbursement, and (4y) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing ExpensesExpenses and (z) that any construction work associated with such Approved Leasing Expenses has been completed in a good and workmanlike manner and in accordance with all applicable legal requirements, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor, (C) copies of appropriate lien waivers or other evidence of payment satisfactory to Lender in connection with any construction work associated with such Approved Leasing Expenses and (D) at Lender’s option, a title search for the Property indicating that it is free from all liens not previously approved by Lender. Any such disbursement of more than $10,000 to pay (rather than reimburse) Approved Leasing Expenses may, at Lender’s option, be made by joint check payable to Borrower and the payee of such Approved Leasing Expenses. For the purposes hereof an “Approved Leasing Expense” shall mean the actual out-of-pocket expenses incurred by Borrower and payable to third parties that are not affiliates of Borrower or any Indemnitor in leasing space at the Premises pursuant to Leases entered into in accordance with the Loan Documents, including brokerage commissions and tenant improvements, which expenses (i) are (A) specifically approved by Lender in connection with approving the applicable Lease, (B) incurred in the ordinary course of business and on market terms and conditions in connection with Leases which do not require Lender’s approval under the Loan Documents, or (C) otherwise approved by Lender, which approval shall not be unreasonably withheld or delayed, and (ii) are substantiated by executed Lease documents and brokerage agreements.
3.5.3 Borrower shall also pay to Lender for transfer (b) In connection with the sums deposited into the Rollover Reserve Subaccount all Lease Termination Payments received pursuant to this Section 3.6, at the end of each calendar year, Borrower shall have the option upon thirty (30) days prior written notice to Lender, to deliver or cause to be delivered to Lender and deposited into the Rollover Reserve a clean, unconditional, irrevocable and freely transferable, sight-draft, issued by Borrowera bank having a rating of “AA” or better by Standard & Poor’s (or equivalent rating agency) and being acceptable to Lender (in its sole and absolute discretion), having an initial expiry date of not earlier than one year after the delivery of such letter of credit, containing an “evergreen” provision for renewals of successive twelve (12) month terms, and otherwise in form and substance acceptable to Lender (“Letter of Credit”) equal to the amount of cash then on deposit in the Rollover Reserve. Provided Upon the delivery of the Letter of Credit to Lender, Lender shall, within fifteen (15) days receipt of such Letter of Credit, deliver to Borrower the cash funds then-held in the Rollover Reserve equal to the amount of the Letter of Credit, which disbursement shall in no Default or event be of more funds than Lender then-holds in the Rollover Reserve in cash sums. At any time after delivery of the Letter of Credit, (i) after the occurrence of an Event of Default, Lender shall have the right to draw upon the Letter of Credit, at Lender’s option, and, from the proceeds thereof (which shall be deposited in the Rollover Reserve), advance to itself any amounts held therein pursuant to Lender’s rights and remedies under the Loan Documents, and (ii) so long as no Event of Default has occurred and is continuingcontinuing and if Borrower requests a disbursement from the Rollover Reserve in accordance with Section 3.6(a) at a time when there is a Letter of Credit outstanding in the amount of such disbursement request but for which there are insufficient cash funds then-held in the Rollover Reserve, at Borrower’s request, Borrower shall have the right to request that Lender draw upon the Letter of Credit, and, from the proceeds thereof (which shall be deposited in the Rollover Reserve), advance to Borrower the amount of the requested disbursement (subject to fulfillment of the conditions related to such disbursement set forth in this Section 3.6) for which there is insufficient cash funds then-held in the Rollover Reserve but sufficient funds held in the Letter of Credit. Notwithstanding anything contained herein to the contrary, the delivery of the Letter of Credit to Lender shall in no way waive Borrower’s obligation to continue to make the monthly deposits into the Rollover Reserve in accordance with this Section 3.6, and in no event shall the delivery of a Letter of Credit to Lender be deemed a waiver or termination of such obligation. In connection with the Letter of Credit, Borrower shall enter into a letter of credit agreement with Lender pledging the Letter of Credit to Lender and governing the terms and conditions of such Letter of Credit and otherwise in form and substance satisfactory to Lender, in Lender’s receipt of satisfactory evidence that sole discretion (the “LC Agreement”). Borrower shall pay any and all Approved Leasing Expenses fees and costs incurred in connection with re-tenanting the space that was the subject of the termination (and any other expenses by Lender in connection with the re-tenanting any of the applicable space) have been paid in full (which evidence may include (i) a letter or certification from LC Agreement and/or the applicable brokerLetter of Credit, if anyincluding, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate executed by each applicable tenant which certifies that all contingencies under such Lease to without limitation, the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion review of the applicable Lease Termination Payment LC Agreement and/or the Letter of Credit and the preparation, execution and delivery of the LC Agreement and/or the Letter of Credit (if any) remaining in the Rollover Reserve Subaccount shall be disbursed to Borrower; providedincluding, howeverwithout limitation, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, and all such funds shall instead be deposited into the Deposit Account, to be applied in accordance with this Agreementattorneys’ fees).
Appears in 1 contract
Samples: Mortgage, Security Agreement and Fixture Filing (Mack Cali Realty Corp)
Rollover Reserve. 3.5.1 For so long as an Event (a) As additional security for the Debt, Mortgagor shall establish and maintain at all times while this Mortgage continues in effect a rollover reserve (the “Rollover Reserve”) with Mortgagee for payment of Default is continuing, costs and expenses incurred by Mortgagor in connection with the payment of tenant improvements (“Tenant Improvements”) and leasing commissions (“Leasing Commissions”) with respect to the Mortgaged Property and the cost to Mortgagor of rent abatements (“Future Rent Abatements”) with respect to the Mortgaged Property not otherwise reserved for pursuant to Section 5.5 of this Mortgage. Commencing on the first Payment after Date under the occurrence of such Event of Default, Note and continuing on each Payment Date during the continuation of an Event of Defaultthereafter, Borrower Mortgagor shall pay to Lender for transfer into Mortgagee, in addition to the monthly payment due under the Note and until the Debt is fully paid and performed, a Subaccount deposit to the Rollover Reserve in an amount (the “Monthly Rollover Reserve SubaccountDeposit”) equal to $7,269.42 per month until such time as the sum of $16,800, subject to Section 3.12 below. All such funds may be used to pay Approved Leasing Expenses as set forth below. Lender shall refund to Borrower all amounts remaining amount on deposit in the Rollover Reserve Subaccount when is equal to (a) prior to January 1, 2009, $200,000 (the “Initial Rollover Reserve Threshold”) or (b) on and after January 1, 2009, $400,000 (the “Increased Rollover Reserve Threshold”, and together with the Initial Rollover Reserve Threshold, the “Rollover Reserve Threshold”). In the event that the amount on deposit in the Rollover Reserve satisfies the applicable Rollover Reserve Threshold, but thereafter such Event amount on deposit in the Rollover Reserve falls below such Rollover Reserve Threshold, Borrower shall re-commence its payment of the Monthly Rollover Deposit until such time as the amount on deposit in the Rollover Reserve once again satisfies the applicable Rollover Reserve Threshold. Funds on deposit in the Rollover Reserve shall be held in interest bearing accounts of the type customarily maintained by Mortgagee or its servicing agent for similar reserves. All interest earned shall be retained by Mortgagee for the benefit of Mortgagor and shall be added to the balance of the Rollover Reserve.
(b) So long as no Default has been cured and no other or Event of Default has occurred and is continuing, Mortgagee shall, to the extent funds are available for such purpose in the Rollover Reserve, disburse to Mortgagor amounts from the Rollover Reserve upon satisfaction of the following conditions:
(i) Mortgagor shall submit a certified requisition (“Requisition”), reasonably satisfactory to Mortgagee. For Tenant Improvements, the Requisition shall provide such detail as Mortgagee may reasonably require, showing percentage of completion, all work completed since the last Requisition, and the amounts expended or incurred for work completed for the applicable period. For Leasing Commissions, the Requisition shall detail the services rendered by the real estate broker and be accompanied by the broker’s invoice showing the Leasing Commissions then due or paid in full by Mortgagor. Leasing Commissions will be disbursed directly to the real estate broker (or paid to Mortgagor if reimbursement is sought), provided that a valid release executed by the broker and Mortgagor is delivered to Mortgagee and the terms of this Section 5.4(b) have otherwise been met, provided further, that disbursement shall be made only with respect to Leasing Commissions payable to unrelated non-affiliated third party brokers. For Future Rent Abatements, the Requisition shall provide such detail as Mortgagee may reasonably require, including a written certification from Mortgagor in a form as may be required by Mortgagee that each of the subject Future Rent Abatements have expired.
3.5.2 (ii) The Requisition is supported by documentation, including (a) a detailed description of the Tenant Improvements and/or Leasing Commissions, as applicable, (b) with respect to Tenant Improvements, a certificate of completion by an architect approved by Mortgagee providing that the applicable Tenant Improvements which are the subject of the Requisition have been completed in accordance with the requirements set forth herein, (c) with respect to Tenant Improvements, a line item list of costs of Tenant Improvements certified as to its accuracy by Mortgagor, (d) with respect to Tenant Improvements, and upon the final Requisition therefor, a valid copy of the certificate of occupancy issued by the appropriate governmental entity or a certification by Mortgagor that no new certificate of occupancy is required for the lawful occupancy of the space in which the Tenant Improvements have been performed, all in a manner satisfactory to Mortgagee in its sole and absolute discretion and (e) with respect to Future Rent Abatements, an estoppel certificate in a form acceptable to Mortgagee from the tenant that has benefited from such Future Rent Abatement stating that there such Future Rent Abatement has expired and is no longer outstanding under its lease.
(iii) Mortgagor, if requested by Mortgagee, will furnish evidence reasonably satisfactory to Mortgagee and to any title company (including lien waivers, invoices and receipts), confirming the priority of this Mortgage and proving all obligations of Mortgagor to any contractor for labor or materials furnished in connection with the Tenant Improvements as of the date of the Requisition have been satisfied. Further, if requested by Mortgagee such title company shall have issued an endorsement to Mortgagee’s title insurance policy confirming the priority of the Mortgage or a title bring-to-date showing that title to the Mortgaged Property is free and clear of encumbrances other than those in the form of title commitment accepted by Mortgagee at closing.
(iv) Mortgagor shall provide evidence that all completed Tenant Improvements comply with any and all Applicable Laws and that all necessary permits, certificates, certificates of occupancy, certificates of completion or other approvals of any governmental authority having jurisdiction have been obtained and continue in full force and effect.
(v) All documents required by Mortgagee to be recorded or filed shall have been recorded or filed.
(vi) With the exception of the final Requisition, no request submitted by Mortgagor shall be for an amount less than Two Thousand Five Hundred Dollars ($2,500).
(vii) At the time of disbursement, payment shall have been made in full by Mortgagor of all out-of-pocket expenses incurred by Mortgagee (including the fees and charges of Mortgagee’s title company, counsel, architect, engineer and other consultants) in connection with any such disbursement. Mortgagee may, at any time and from time to time, and without prior notice to Mortgagor, withdraw funds deposited in the Rollover Reserve to pay all or any of such fees, charges and expenses to Mortgagee or any such other parties as necessary. Further, and notwithstanding anything herein to the contrary, all such fees, charges and expenses shall be payable by Mortgagor to Mortgagee, at any time and from time to time, upon demand, and regardless of whether Mortgagor has submitted a Requisition.
(viii) Requisitions may be submitted no more frequently than once every thirty (30) days up to six (6) times a year. Approval of any Requisition shall not constitute a waiver of Mortgagee’s rights as to any defective work or material or any work that funds fails to comply with the requirements therefor set out herein or the other provisions hereof. In addition to the foregoing disbursement conditions, Mortgagor shall also be entitled to disbursements from the Rollover Reserve so long as (a) no Event of Default has occurred and is continuing, (b) the conditions precedent to a disbursement from the Cash Sweep Reserve have been met and (c) there are no further amounts on deposit in the Cash Sweep Reserve. The amounts that may be disbursed from the Rollover Reserve Subaccountpursuant to the immediately preceding sentence shall be the same amounts as described in Section 5.6 hereof.
(c) Mortgagee, Lender may, at Lender’s sole option, disburse funds held by acceptance of the sums deposited in the Rollover Reserve Subaccount to BorrowerReserve, within fifteen (15) days after the delivery does not assume any personal liability and Mortgagor hereby releases Mortgagee from any such liability and no claim shall be made by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is Mortgagor upon Mortgagee for an Approved Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance or on account of any construction work associated with such Approved Leasing Expense; and (iii) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying (1) that such funds will be used only to pay (or reimburse Borrower for) Approved Leasing Expenses and a description thereof, (2) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid matter in full, (3) that the same has not been the subject of a previous disbursement, and (4) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing Expenses, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor.
3.5.3 Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided no Default or Event of Default is continuing, upon Lender’s receipt of satisfactory evidence that all Approved Leasing Expenses incurred in connection with re-tenanting the space that was the subject excess of the termination (and any other expenses in connection with the re-tenanting balance of the applicable space) have been paid in full (which evidence may include (i) a letter or certification from the applicable broker, if any, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate executed by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) sums remaining in the Rollover Reserve Subaccount Reserve. Mortgagee shall be disbursed to Borrower; providedprotected in acting upon any notice, howeverrequest, if a Cash Management Period is then continuingconsent, then no such funds shall be disbursed to Borrowerdemand, and all such funds shall instead be deposited into the Deposit Accountstatement, note or other paper or document believed by Mortgagee to be applied genuine and to have been signed by the party or parties purporting to sign the same. Furthermore, Mortgagor agrees that Mortgagee is neither an agent for Mortgagor nor a trustee and Mortgagee shall not incur any liability whatsoever in connection with those capacities. Mortgagee’s acceptance of and administration of, the Rollover Reserve, shall not impose any responsibility on Mortgagee beyond the payment and disbursement of funds in accordance with this Agreementherewith.
Appears in 1 contract
Rollover Reserve. 3.5.1 For so long as an Event (a) As additional security for the Debt, Mortgagor shall establish and maintain at all times while this Mortgage continues in effect a rollover reserve (the “Rollover Reserve”) with Mortgagee for payment of Default is continuing, costs and expenses incurred by Mortgagor in connection with the payment of tenant improvements (“Tenant Improvements”) and leasing commissions (“Leasing Commissions”) with respect to the Mortgaged Property and the cost to Mortgagor of rent abatements (“Future Rent Abatements”) with respect to the Mortgaged Property not otherwise reserved for pursuant to Section 5.5 of this Mortgage. Commencing on the first Payment after Date under the occurrence of such Event of Default, Note and continuing on each Payment Date during the continuation of an Event of Defaultthereafter, Borrower Mortgagor shall pay to Lender for transfer into Mortgagee, in addition to the monthly payment due under the Note and until the Debt is fully paid and performed, a Subaccount deposit to the Rollover Reserve in an amount (the “Monthly Rollover Reserve SubaccountDeposit”) equal to $7,269.42 per month until such time as the sum of $16,800, subject to Section 3.12 below. All such funds may be used to pay Approved Leasing Expenses as set forth below. Lender shall refund to Borrower all amounts remaining amount on deposit in the Rollover Reserve Subaccount when is equal to (a) prior to January 1, 2009, $200,000 (the “Initial Rollover Reserve Threshold”) or (b) on and after January 1, 2009, $400,000 (the “Increased Rollover Reserve Threshold”, and together with the Initial Rollover Reserve Threshold, the “Rollover Reserve Threshold”). In the event that the amount on deposit in the Rollover Reserve satisfies the applicable Rollover Reserve Threshold, but thereafter such Event amount on deposit in the Rollover Reserve falls below such Rollover Reserve Threshold, Borrower shall re-commence its payment of the Monthly Rollover Deposit until such time as the amount on deposit in the Rollover Reserve once again satisfies the applicable Rollover Reserve Threshold. Funds on deposit in the Rollover Reserve shall be held in interest bearing accounts of the type customarily maintained by Mortgagee or its servicing agent for similar reserves. All interest earned shall be retained by Mortgagee for the benefit of Mortgagor and shall be added to the balance of the Rollover Reserve.
(b) So long as no Default has been cured and no other or Event of Default has occurred and is continuing, Mortgagee shall, to the extent funds are available for such purpose in the Rollover Reserve, disburse to Mortgagor amounts from the Rollover Reserve upon satisfaction of the following conditions:
(i) Mortgagor shall submit a certified requisition (“Requisition”), reasonably satisfactory to Mortgagee. For Tenant Improvements, the Requisition shall provide such detail as Mortgagee may reasonably require, showing percentage of completion, all work completed since the last Requisition, and the amounts expended or incurred for work completed for the applicable period. For Leasing Commissions, the Requisition shall detail the services rendered by the real estate broker and be accompanied by the broker’s invoice showing the Leasing Commissions then due or paid in full by Mortgagor. Leasing Commissions will be disbursed directly to the real estate broker (or paid to Mortgagor if reimbursement is sought), provided that a valid release executed by the broker and Mortgagor is delivered to Mortgagee and the terms of this Section 5.4(b) have otherwise been met, provided further, that disbursement shall be made only with respect to Leasing Commissions payable to unrelated non-affiliated third party brokers. For Future Rent Abatements, the Requisition shall provide such detail as Mortgagee may reasonably require, including a written certification from Mortgagor in a form as may be required by Mortgagee that each of the subject Future Rent Abatements have expired.
3.5.2 (ii) The Requisition is supported by documentation, including (a) a detailed description of the Tenant Improvements and/or Leasing Commissions, as applicable, (b) with respect to Tenant Improvements, a certificate of completion by an architect approved by Mortgagee providing that the applicable Tenant Improvements which are the subject of the Requisition have been completed in accordance with the requirements set forth herein, (c) with respect to Tenant Improvements, a line item list of costs of Tenant Improvements certified as to its accuracy by Mortgagor, (d)with respect to Tenant Improvements, and upon the final Requisition therefor, a valid copy of the certificate of occupancy issued by the appropriate governmental entity or a certification by Mortgagor that no new certificate of occupancy is required for the lawful occupancy of the space in which the Tenant Improvements have been performed, all in a manner satisfactory to Mortgagee in its sole and absolute discretion and (e) with respect to Future Rent Abatements, an estoppel certificate in a form acceptable to Mortgagee from the tenant that has benefited from such Future Rent Abatement stating that there such Future Rent Abatement has expired and is no longer outstanding under its lease.
(iii) Mortgagor, if requested by Mortgagee, will furnish evidence reasonably satisfactory to Mortgagee and to any title company (including lien waivers, invoices and receipts), confirming the priority of this Mortgage and proving all obligations of Mortgagor to any contractor for labor or materials furnished in connection with the Tenant Improvements as of the date of the Requisition have been satisfied. Further, if requested by Mortgagee such title company shall have issued an endorsement to Mortgagee’s title insurance policy confirming the priority of the Mortgage or a title bring-to-date showing that title to the Mortgaged Property is free and clear of encumbrances other than those in the form of title commitment accepted by Mortgagee at closing.
(iv) Mortgagor shall provide evidence that all completed Tenant Improvements comply with any and all Applicable Laws and that all necessary permits, certificates, certificates of occupancy, certificates of completion or other approvals of any governmental authority having jurisdiction have been obtained and continue in full force and effect.
(v) All documents required by Mortgagee to be recorded or filed shall have been recorded or filed.
(vi) With the exception of the final Requisition, no request submitted by Mortgagor shall be for an amount less than Two Thousand Five Hundred Dollars ($2,500).
(vii) At the time of disbursement, payment shall have been made in full by Mortgagor of all out-of-pocket expenses incurred by Mortgagee (including the fees and charges of Mortgagee’s title company, counsel, architect, engineer and other consultants) in connection with any such disbursement. Mortgagee may, at any time and from time to time, and without prior notice to Mortgagor, withdraw funds deposited in the Rollover Reserve to pay all or any of such fees, charges and expenses to Mortgagee or any such other parties as necessary. Further, and notwithstanding anything herein to the contrary, all such fees, charges and expenses shall be payable by Mortgagor to Mortgagee, at any time and from time to time, upon demand, and regardless of whether Mortgagor has submitted a Requisition.
(viii) Requisitions may be submitted no more frequently than once every thirty (30) days up to six (6) times a year. Approval of any Requisition shall not constitute a waiver of Mortgagee’s rights as to any defective work or material or any work that funds fails to comply with the requirements therefor set out herein or the other provisions hereof. In addition to the foregoing disbursement conditions, Mortgagor shall also be entitled to disbursements from the Rollover Reserve so long as (a) no Event of Default has occurred and is continuing, (b) the conditions precedent to a disbursement from the Cash Sweep Reserve have been met and (c) there are no further amounts on deposit in the Cash Sweep Reserve. The amounts that may be disbursed from the Rollover Reserve Subaccountpursuant to the immediately preceding sentence shall be the same amounts as described in Section 5.6 hereof.
(c) Mortgagee, Lender may, at Lender’s sole option, disburse funds held by acceptance of the sums deposited in the Rollover Reserve Subaccount to BorrowerReserve, within fifteen (15) days after the delivery does not assume any personal liability and Mortgagor hereby releases Mortgagee from any such liability and no claim shall be made by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is Mortgagor upon Mortgagee for an Approved Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance or on account of any construction work associated with such Approved Leasing Expense; and (iii) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying (1) that such funds will be used only to pay (or reimburse Borrower for) Approved Leasing Expenses and a description thereof, (2) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid matter in full, (3) that the same has not been the subject of a previous disbursement, and (4) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing Expenses, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor.
3.5.3 Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided no Default or Event of Default is continuing, upon Lender’s receipt of satisfactory evidence that all Approved Leasing Expenses incurred in connection with re-tenanting the space that was the subject excess of the termination (and any other expenses in connection with the re-tenanting balance of the applicable space) have been paid in full (which evidence may include (i) a letter or certification from the applicable broker, if any, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate executed by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) sums remaining in the Rollover Reserve Subaccount Reserve. Mortgagee shall be disbursed to Borrower; providedprotected in acting upon any notice, howeverrequest, if a Cash Management Period is then continuingconsent, then no such funds shall be disbursed to Borrowerdemand, and all such funds shall instead be deposited into the Deposit Accountstatement, note or other paper or document believed by Mortgagee to be applied genuine and to have been signed by the party or parties purporting to sign the same. Furthermore, Mortgagor agrees that Mortgagee is neither an agent for Mortgagor nor a trustee and Mortgagee shall not incur any liability whatsoever in connection with those capacities. Mortgagee’s acceptance of and administration of, the Rollover Reserve, shall not impose any responsibility on Mortgagee beyond the payment and disbursement of funds in accordance with this Agreementherewith.
Appears in 1 contract
Samples: Mortgage and Security Agreement (American Realty Capital New York Recovery Reit Inc)
Rollover Reserve. 3.5.1 For so long If as an Event of Default is continuingOctober 15, 2010, the T-Mobile Lease has not been renewed or a new lease entered into with the existing tenant, or a new lease entered into with a new tenant for the entire T-Mobile Property, which renewal or new leases are subject to the approval of Lender as provided in Section 5.9 of this Agreement, commencing on the first next occurring Payment after the occurrence of such Event of Default, Date and continuing on each Payment Date during thereafter, all Excess Cash Flow from all of the continuation Properties shall be paid to Lender, and transferred by Lender into a Subaccount (the “T-Mobile Rollover Reserve Subaccount”) up to a maximum amount of $1,500,000 (the “T-Mobile Rollover Reserve Cap”). Once the T-Mobile Rollover Reserve Cap has been met, and the entire T-Mobile Property has been re-let pursuant to an Event of Defaultapproved Lease or Leases, the funds in the T-Mobile Rollover Reserve Subaccount will be available for Approved Leasing Expenses for the T-Mobile Property with respect to the T-Mobile Property. Borrower shall also pay to Lender for transfer into a Subaccount (the “Rollover Reserve Subaccount”) the sum of $16,800, subject to Section 3.12 below. All such funds may be used to pay Approved Leasing Expenses as set forth below. Lender shall refund to Borrower all amounts remaining on deposit in the T-Mobile Rollover Reserve Subaccount when such Event all payments received from the tenant at the T-Mobile Property in connection with the early termination or cancellation of the T-Mobile Leases, including fees, penalties and commissions. Provided that no Default has been cured and no other or Event of Default has occurred and is continuing.
3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, shall disburse funds held in the Rollover Reserve Subaccount to Borrower, Borrower within fifteen (15) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is for an Approved Leasing ExpenseExpense for the T-Mobile Property; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work associated with such Approved Leasing ExpenseExpense for the T-Mobile Property; and (iii) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying (1v) that such funds will be used only to pay (or reimburse Borrower for) Approved Leasing Expenses for the T-Mobile Property and a description thereof, (2w) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been are being paid in fullas agreed, (3x) that the same has not been the subject of a previous disbursement, and (4y) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing ExpensesExpenses for the T-Mobile Property and (z) that any construction work associated with such Approved Leasing Expenses for the T-Mobile Property has been completed in a good and workmanlike manner and in material compliance with all applicable Legal Requirements, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor.
3.5.3 Borrower shall also pay therefore, (C) copies of appropriate Lien waivers or other evidence of payment satisfactory to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided no Default or Event of Default is continuing, upon Lender’s receipt of satisfactory evidence that all in connection with any construction work associated with such Approved Leasing Expenses incurred in connection with refor the T-tenanting the space that was the subject of the termination (and any other expenses in connection with the re-tenanting of the applicable space) have been paid in full (which evidence may include (i) a letter or certification from the applicable brokerMobile Property, if any, that all brokerage commissions payable in connection therewith have been paid and (iiD) an estoppel certificate executed at Lender’s option, a title search for the Property indicating that it is free from all Liens not previously approved by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) remaining in the Rollover Reserve Subaccount Lender. Borrower shall be disbursed entitled to Borrower; providedrequest payment (rather than reimbursement) of Approved Leasing Expenses for the T-Mobile Property, however, if a Cash Management Period is then continuingany such disbursement of more than $10,000 to pay (rather than reimburse) Approved Leasing Expenses for the T-Mobile Property may, then no at Lender’s option, be made by joint check payable to Borrower and the payee of such funds shall be disbursed to Borrower, and all such funds shall instead be deposited into Approved Leasing Expenses for the Deposit Account, to be applied in accordance with this AgreementT-Mobile Property.
Appears in 1 contract
Rollover Reserve. 3.5.1 For so long as an Event of Default is continuing, on the first Payment after the occurrence of such Event of Default, and on each Payment Date during the continuation of an Event of Default, Borrower shall pay to Lender for transfer into a Subaccount (the “Rollover Reserve Subaccount”) the sum of $16,8009,437, subject to Section 3.12 below. In addition, if any Major Tenant (a) vacates its leased premises or announces publicly or to Borrower or Manager its intention to vacate its leased premises or (b) subleases, offers to sublease or requests Borrower or Manager to approve the sublease of, at least 200,000 square feet of Major Tenant’s leased premises (in the aggregate, taking into account all subleases previously made by the Major Tenants), commencing on the next occurring Payment Date and on each Payment Date thereafter, Borrower shall pay to Lender for deposit into the Rollover Reserve Account the sum of $9,437 until (A) if such payment obligation is triggered by any event described in clause (a) above, the date on which the subject Major Tenant irrevocably exercises its renewal or extension option (or otherwise enters into an extension agreement with Borrower and acceptable to Lender) with respect to all of the space demised under its Major Lease, or (B) if such payment obligation is triggered by any event described in clause (b) above, the date on which all of the space demised under the subject Major Lease that gave rise to the commencement of the required payment into the Rollover Reserve Subaccount has been fully subleased pursuant to a sublease acceptable to Lender, and all Approved Major Lease Expenses (and any other expenses in connection with the subleasing of such space) have been paid in full. All such funds may be used to pay Approved Leasing Major Lease Expenses as set forth below. Lender shall refund to Borrower all amounts remaining on deposit in the Rollover Reserve Subaccount when such Event of Default has been cured and no other Event of Default has occurred and is continuing.
3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender (i) may, at Lender’s sole optionoption if an Event of Default is continuing and (ii) shall, subject to the conditions below, if no Event of Default is then continuing, disburse funds held in the Rollover Reserve Subaccount to Borrower, within fifteen (15) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is for an Approved Leasing Major Lease Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work associated with such Approved Leasing Major Lease Expense; and (iii) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying (1) that such funds will be used only to pay (or reimburse Borrower for) Approved Leasing Major Lease Expenses and a description thereof, (2) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Major Lease Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid in full, (3) that the same has not been the subject of a previous disbursement, and (4) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing Major Lease Expenses, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor.
3.5.3 Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. .
3.5.4 Provided no Default or Event of Default is continuing, upon Lender’s receipt of satisfactory evidence that all Approved Leasing Expenses incurred in connection with re-tenanting the space that was the subject of the termination (and any other expenses in connection with the re-tenanting of the applicable space) have been paid in full (which evidence may include (i) a letter or certification from the applicable broker, if any, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate executed by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) remaining in the Rollover Reserve Subaccount shall be disbursed to Borrower; provided, however, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, and all such funds shall instead be deposited into the Deposit Account, to be applied in accordance with this Agreement.
Appears in 1 contract
Samples: Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Rollover Reserve. 3.5.1 For so long as an Event of Default (a) To the extent the Overstock Lease is continuing, on the first Payment after the occurrence of such Event of Defaultno longer in effect, and on each Payment Date during Overstock no longer occupies the continuation of an Event of DefaultProperty, then under such circumstances, Borrower shall pay to Lender for an amount initially equal to $19,715.00 on each Payment Date. Lender will transfer such amount into a Subaccount (the “Rollover Reserve Subaccount”) the sum of $16,800, subject to Section 3.12 below). All such funds may be used to pay Approved Leasing Expenses Other than as set forth belowin Section 3.6.2 with respect to Lease Termination Payments from any Lease Sweep Tenant, Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. If Lender shall refund to Borrower all amounts remaining on deposit determines in its reasonable judgment that the funds in the Rollover Reserve Subaccount when will be insufficient to pay the amounts due or to become due for Approved Leasing Expenses, Lender may increase the monthly contribution required to be made by Borrower to the Rollover Reserve Subaccount; provided, however, that Lender shall only increase the amount of such Event of Default monthly contributions if the Overstock Lease has been cured terminated or if Lender reasonably determines that such increase is necessary to address unanticipated material changes after the date hereof in the anticipated tenant improvement costs and brokerage commissions for the Property (in which event such reassessment shall be limited to address only such issues) and any increase shall be based on an amount which is not greater than amounts necessary to pay such additional commercially reasonable expenses as estimated by Lender in its reasonable discretion taking into account amounts deposited into the Rollover Reserve Subaccount and, if applicable, the Special Rollover Reserve Subaccount.
(b) Provided that no other Event of Default has occurred and is continuing.
3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within fifteen (15) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,00010,000, provided that: (i) such disbursement is for an Approved Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work in excess of $500,000 associated with such Approved Leasing Expense; (iii) with respect to any tenant improvement work, Borrower shall have furnished to Lender copies of all permits, licenses and approvals required by any Governmental Authority with regard to such work that is the subject of the requested disbursement, whether necessary for commencement, completion, use or otherwise; and (iiiiv) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying (1) that such funds will be used only to pay (or reimburse Borrower for) Approved Leasing Expenses and a description thereof, (2) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense of Borrower (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid in full, (3) that the same has not been the subject of a previous disbursement, and (4) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing Expenses, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor. Any such disbursement of more than $100,000 to pay (rather than reimburse) Approved Leasing Expenses may, at Lender’s option, be made by direct check payable to the payee of such Approved Leasing Expenses.
3.5.3 Borrower shall also pay to Lender for transfer (c) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount all from the Security Deposit Subaccount in accordance with Section 3.9 hereof shall be applied, at Lender’s election, towards either (i) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease Termination Payments received (or to cure any other tenant default under such Lease), (ii) debt service shortfalls that may arise as a result of a termination of such Lease (and Borrower hereby authorizes Lender to disburse to itself any such amounts without any request therefor by Borrower. Provided no Default ) or Event of Default is continuing, upon Lender’s receipt of satisfactory evidence that all (iii) funding any Approved Leasing Expenses incurred in connection with re-tenanting the space that was the subject of the termination (and any other expenses or Approved Lease Sweep Lease Leasing Expenses, if applicable) which are anticipated to occur in connection with the re-tenanting of the applicable space) have been paid in full space under the Lease that was the subject of such termination (which evidence may include (i) a letter or certification from the applicable broker, if any, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate executed by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) remaining in the Rollover Reserve Subaccount shall be disbursed to Borrower; provided, however, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, and all such funds shall instead be deposited into the Deposit Account, to be applied in accordance with this Agreementthe terms and conditions of Section 3.6.1(b) hereof, or Section 3.6.2 hereof, if applicable).
Appears in 1 contract
Samples: Loan Agreement (OVERSTOCK.COM, Inc)
Rollover Reserve. 3.5.1 For so long as an Event of Default is continuing, on the first Commencing with First Payment after the occurrence of such Event of Default, Date (and continuing thereafter on each monthly Payment Date during under the continuation of an Event of DefaultNote, Borrower shall pay to Lender, concurrently with and in addition to the monthly payment due under the Note and until the Debt is fully paid and performed, a deposit into a reserve (the “Rollover Reserve”) in an amount equal to $4,594.33 per month. In addition to the foregoing, Borrower shall also pay to Lender for transfer into a Subaccount (the “Rollover Reserve Subaccount”) all payments received from tenants in connection with the sum early termination or cancellation of $16,800any Leases, subject to Section 3.12 belowincluding fees, penalties and commissions. All such If Lender determines in its reasonable judgment that the funds may be used to pay Approved Leasing Expenses as set forth below. Lender shall refund to Borrower all amounts remaining on deposit in the Rollover Reserve Subaccount when such Event will be insufficient to pay (or in excess of) the amounts due or to become due for Approved Leasing Expenses (as hereinafter defined), Lender may increase (or decrease) the Floor Amount or the amount of Default has been cured and the Monthly Deposit required to be made by Borrower to the Rollover Reserve. Provided that no other Event of Default has occurred and is continuing.
3.5.2 At any time that funds are on deposit in the Rollover Reserve Subaccount, Lender may, at Lender’s sole option, shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within fifteen (15) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments of at least $5,000, provided (i) such disbursement is for an Approved Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance of any construction work associated with such Approved Leasing Expense; and (iii) the request for disbursement is accompanied by (A) an Officerofficer’s Certificate certificate from an authorized officer of the Borrower certifying (1v) that such funds will be used only to pay (or reimburse Borrower for) Approved Leasing Expenses and a description thereof, (2w) that all outstanding trade payables that are due and payable for the applicable Approved Leasing Expense (other than those to be paid from the requested disbursement or those constituting Permitted Indebtednessdisbursement) have been paid in full, (3x) that the same has not been the subject of a previous disbursement, and (4y) that all previous disbursements have been used only to pay (or reimburse Borrower for) the previously identified Approved Leasing ExpensesExpenses and (z) that any construction work associated with such Approved Leasing Expenses has been completed in a good and workmanlike manner and in accordance with all applicable legal requirements, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor.
3.5.3 Borrower shall also pay , (C) copies of appropriate lien waivers or other evidence of payment satisfactory to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided no Default or Event of Default is continuing, upon Lender’s receipt of satisfactory evidence that all in connection with any construction work associated with such Approved Leasing Expenses and (D) at Lender’s option, a title search for the Property indicating that it is free from all liens not previously approved by Lender. Any such disbursement of more than $10,000 to pay (rather than reimburse) Approved Leasing Expenses may, at Lender’s option, be made by joint check payable to Borrower and the payee of such Approved Leasing Expenses. For the purposes hereof an “Approved Leasing Expense” shall mean the actual out-of-pocket expenses incurred by Borrower and payable to third parties that are not affiliates of Borrower or any Indemnitor in leasing space at the Premises pursuant to Leases entered into in accordance with the Loan Documents, including brokerage commissions and tenant improvements, which expenses (i) are (A) specifically approved by Lender in connection with re-tenanting approving the space that was applicable Lease, (B) incurred in the subject ordinary course of the termination (business and any other expenses on market terms and conditions in connection with Leases which do not require Lender’s approval under the re-tenanting of the applicable spaceLoan Documents, or (C) have been paid in full (otherwise approved by Lender, which evidence may include (i) a letter approval shall not be unreasonably withheld or certification from the applicable brokerdelayed, if any, that all brokerage commissions payable in connection therewith have been paid and (ii) an estoppel certificate are substantiated by executed by each applicable tenant which certifies that all contingencies under such Lease to the payment of full rent (including Borrower’s contribution to the cost of any tenant improvement work) have been satisfied), any portion of the applicable Lease Termination Payment (if any) remaining in the Rollover Reserve Subaccount shall be disbursed to Borrower; provided, however, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, documents and all such funds shall instead be deposited into the Deposit Account, to be applied in accordance with this Agreementbrokerage agreements.
Appears in 1 contract
Samples: Mortgage, Security Agreement and Fixture Filing (NNN Healthcare/Office REIT, Inc.)
