Rollover Reserves. (a) On the date hereof, Borrower shall pay to Lender an amount equal to (i) $360,958.95 (the “Hewlett-Packard TI Deposit”) and (ii) $139,680.00 (the “Apex Systems TI Deposit”). From and after the earlier of (i) April 1, 2008 and (ii) the first (1st) Payment Date following the prepayment of the Tranche B Loan, Borrower shall pay to Lender on each Payment Date an amount equal to $24,495. (such monthly payments are collectively referred to herein as, the “Monthly Rollover Funds”). Lender will transfer such amounts, including without limitation, the Hewlett-Packard TI Deposit and the Apex Systems TI Deposit, into a Subaccount (the “Rollover Reserve Subaccount”). Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within ten (10) 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 Table of Contents 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 (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 $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. Notwithstanding anything to the contrary contained in this Section 3.5, (i) funds constituting the Hewlett-Packard TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Hewlett-Packard and (ii) funds constituting the Apex Systems TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Any unused portion of the Hewlett-Packard TI Deposit and/or Apex Systems TI Deposit shall remain in the Rollover Reserve Subaccount for the payment of Approved Leasing Expenses and shall be disbursed in accordance with the provisions of this Section 3.5(a). (b) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount from the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be applied, at Lender’s election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (b) 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) or (c) funding any Approved Leasing Expenses which are anticipated to occur in connection with the re-tenanting of the space under the Lease that was the subject of such termination (in accordance with the terms and conditions of Section 3.5(a) above. (c) Any amounts constituting a Leasing Advance Funding Shortfall funded by Lender pursuant to Section 2.9.4 hereof shall be transferred by Lender into the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing and provided that each of the conditions precedent set forth in Section 2.9.3 hereof have been satisfied, Lender 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 to be used to pay or reimburse Borrower for Approved Leasing Expenses. 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 on such Approved Leasing Expenses.
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Rollover Reserves. Borrowers shall pay to Lender (ai) On $1,570,000 on the date hereof, Borrower shall pay to Lender an amount equal to (i) $360,958.95 (the “Hewlett-Packard TI Deposit”) and (ii) $139,680.00 (the “Apex Systems TI Deposit”). From and after the earlier of (i) April 1, 2008 and (ii) the first (1st) Payment Date following the prepayment of the Tranche B Loan, Borrower shall pay to Lender 23,035 on each Payment Date an amount equal to from and including January 1, 2004 through and including December 1, 2005 and (iii) $24,495. (such monthly payments are collectively referred to herein as, the “Monthly Rollover Funds”)28,795 on each Payment Date thereafter. Lender will transfer such amounts, including without limitation, the Hewlett-Packard TI Deposit and the Apex Systems TI Deposit, amounts into a Subaccount (the “Rollover Reserve Subaccount”"ROLLOVER RESERVE SUBACCOUNT"). Borrower Borrowers shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments payments received from tenants in connection with the early termination or cancellation of any Leases, including fees, penalties and commissions. If Lender determines in its reasonable judgment that the funds in the Rollover Reserve Subaccount will be insufficient to pay (or in excess of) the amounts due or to become due for Approved Leasing Expenses, Lender may increase (or decrease) the monthly contribution required to be made by BorrowerBorrowers to the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse funds held in the Rollover Reserve Subaccount to BorrowerBorrowers, within ten (10) 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 Table of Contents 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; and (iii) 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 (other than those not yet due and payable or 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. Any such disbursement of more than $10,000 to pay (rather than reimburse) Approved Leasing Expenses may, at Lender’s 's option, be made by joint check payable to Borrower Borrowers and the payee of such Approved Leasing Expenses. Notwithstanding anything to the contrary contained in this Section 3.5, (i) funds constituting the Hewlett-Packard TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Hewlett-Packard and (ii) funds constituting the Apex Systems TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Any unused portion of the Hewlett-Packard TI Deposit and/or Apex Systems TI Deposit shall remain in the Rollover Reserve Subaccount for the payment of Approved Leasing Expenses and shall be disbursed in accordance with the provisions of this Section 3.5(a).
(b) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount from the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be applied, at Lender’s election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (b) 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) or (c) funding any Approved Leasing Expenses which are anticipated to occur in connection with the re-tenanting of the space under the Lease that was the subject of such termination (in accordance with the terms and conditions of Section 3.5(a) above.
(c) Any amounts constituting a Leasing Advance Funding Shortfall funded by Lender pursuant to Section 2.9.4 hereof shall be transferred by Lender into the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing and provided that each of the conditions precedent set forth in Section 2.9.3 hereof have been satisfied, Lender 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 to be used to pay or reimburse Borrower for Approved Leasing Expenses. 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 on such Approved Leasing Expenses...
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Rollover Reserves. (a) On 3.4.1 Subject to the date hereofprovisions of Section 3.4.2 and 3.4.3, in the event that Disney or Bank of America shall fail to exercise their respective renewal options under their respective Leases with Borrower shall pay prior to Lender an amount equal to (i) $360,958.95 (the “Hewlett-Packard TI Deposit”) and (ii) $139,680.00 (the “Apex Systems TI Deposit”). From and after the earlier of (i) April 1, 2008 and (ii) the first (1st) Payment Date following the prepayment of the Tranche B Loanspecific notification period required in their respective Leases, Borrower shall pay to Lender on each Payment Date an all Available Cash, until the amount deposited in the Rollover Reserve Subaccount shall equal $30.00 per square foot of the space leased to $24,495. Disney and/or Bank of America that is not renewed (the "NON-RENEWED SPACE") (any period during which Borrower is required to make such monthly payments are collectively deposits to the Rollover Reserve Subaccount being referred to herein asas the "ROLLOVER RESERVE PERIOD"), which shall be deposited with and held by Lender for tenant improvement and leasing commission obligations incurred with respect to the “Monthly Rollover Funds”)Non-Renewed Space. Lender will shall transfer such amounts, including without limitation, the Hewlett-Packard TI Deposit and the Apex Systems TI Deposit, amounts so deposited into a Subaccount (the “Rollover Reserve Subaccount”"ROLLOVER RESERVE SUBACCOUNT"). Borrower Lender shall also pay to Lender for transfer into make disbursements from the Rollover Reserve Subaccount all for expenses reasonably incurred by Borrower for new Leases for the Non-Renewed Space, entered into by Borrower in accordance with the provisions of Section 5.10, no more frequently than once in any thirty (30) day period in increments of no less than $1,000.00 upon delivery by Borrower of Lender's standard form of draw request accompanied by copies of invoices for the amounts requested for tenant improvements and leasing commissions, the newly executed Lease Termination Payments and any extension, renewal, or modification (if not previously received by Lender) and, if required by Lender, for requests in excess of $50,000 (multiple payments made with respect to one tenant or contractor or other Person shall be aggregated for such $50,000 limit), conditional lien waivers and releases from all parties furnishing materials and/or services in connection with the requested payment. Lender may issue joint checks payable to Borrower and the contractor or other person to whom payment is due with respect to any requested payment. Lender may require an inspection of the Property at Borrower's expense prior to making a monthly disbursement in order to verify completion of improvements, replacements or repairs for which reimbursement or payment is sought which costs in the aggregate exceed $50,000. Provided Notwithstanding anything to the contrary contained herein, the balance in the Rollover Reserve Subaccount, if any, shall be released to Borrower to the extent that Disney or Bank of America renew their respective Leases prior to the expiration of their respective terms.
3.4.2 In lieu of making the payments to the Rollover Reserve Subaccount, Borrower may deliver to Lender one or more Letters of Credit in accordance with the provisions of this Section 3.4.2. Additionally, Borrower may deliver to Lender one or more Letters of Credit in accordance with the provisions of this Section 3.2.4 in lieu of deposits previously made to the Rollover Reserve Subaccount and upon such delivery, provided that no Default or Event of Default has occurred and is then continuing, Lender shall disburse funds held obtain the release of such amounts previously deposited. The aggregate amount of proceeds available to be drawn under the Letters of Credit and cash on deposit in the Rollover Reserve Subaccount shall at all times be at least equal to the aggregate amount which Borrower is then required to have on deposit in the Rollover Reserve Subaccount pursuant to this Agreement. Borrower shall give Lender no less than thirty (30) days prior notice of Borrower's election to deliver a Letter of Credit and Borrower shall pay to Lender all of Lender's reasonable out-of-pocket costs and expenses in connection therewith. Borrower shall not be entitled to draw upon any such Letter of Credit. Upon thirty (30) days prior notice to Lender, within Borrower may replace a Letter of Credit with a cash deposit to the Rollover Reserve Subaccount. Prior to the return of a Letter of Credit, Borrower shall deposit an amount equal to the amount that would have accumulated in the Rollover Reserve Subaccount, and not been disbursed in accordance with this Agreement, if such Letter of Credit had not been delivered. Each Letter of Credit delivered under this Agreement shall be additional security for the payment of the Debt. Upon the occurrence of an Event of Default, Lender shall have the right, at its option, to draw on any Letter of Credit and to apply all or any part thereof to the payment of the items for which such Letter of Credit was established or to apply each such Letter of Credit to payment of the Debt in such order, proportion or priority as Lender may determine. On the Maturity Date, any such Letter of Credit may be applied to reduce the Debt. In addition to any other right Lender may have to draw upon a Letter of Credit pursuant to the terms and conditions of this Agreement, unless Borrower has deposited cash in the applicable reserve fund sufficient to replace the Letter of Credit as provided above, Lender shall have the additional right to draw upon any Letter of Credit in full: (a) with respect to any evergreen Letter of Credit, if Lender has received a notice from the issuing bank that the Letter of Credit will not be renewed and a substitute Letter of Credit is not provided at least ten (10) Business Days prior to the date on which the outstanding Letter of Credit is scheduled to expire; (b) with respect to any Letter of Credit with a stated expiration date, if Lender has not received a notice from the issuing bank that it has renewed the Letter of Credit at least ten (10) Business Days prior to the date on which such Letter of Credit is scheduled to expire and a substitute Letter of Credit is not provided at least ten (10) Business Days prior to the date on which the outstanding Letter of Credit is scheduled to expire; (c) upon receipt of notice from the issuing bank that the Letter of Credit will be terminated (except if the termination of such Letter of Credit is permitted pursuant to the terms and conditions of this Agreement or a substitute Letter of Credit is provided); or (d) if Lender has received notice that the bank issuing the Letter of Credit shall cease to be an Eligible Institution (as hereinafter defined) and Borrower has not provided a substitute Letter of Credit or deposited cash to replace the Letter of Credit within five (5) days after Lender has received such notice. In the delivery by Borrower to event that Lender draws upon any Letter of Credit as a request therefor result of any of the events described in clauses (but not more often than once per month), in increments of at least $5,000a)-(d) above, provided there is no Event of Default then continuing, (i) such disbursement is for an Approved Table of Contents Leasing Expense; (iix) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s expense) performance deposit all proceeds of any construction work associated with such Approved Leasing Expense; Letter of Credit in the Rollover Reserve Subaccount and (iiiy) if 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 (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 $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 proceeds of such Approved Leasing ExpensesLetter of Credit exceed the amount that would have otherwise been on deposit in the Rollover Reserve Subaccount in the event that Borrower had not posted such Letter of Credit, any excess amounts shall remain on deposit in such reserve fund and shall be credited against Borrower's future deposit obligations into the Rollover Reserve Subaccount. Notwithstanding anything to the contrary contained in this Section 3.5the above, (i) funds constituting Lender is not obligated to draw any Letter of Credit upon the Hewlett-Packard TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Hewlett-Packard and (ii) funds constituting the Apex Systems TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Any unused portion happening of the Hewlett-Packard TI Deposit and/or Apex Systems TI Deposit shall remain an event specified in the Rollover Reserve Subaccount for the payment of Approved Leasing Expenses and shall be disbursed in accordance with the provisions of this Section 3.5(a).
(b) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount from the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be applied, at Lender’s election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (b) 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 Borrowerc) or (cd) funding above and shall not be liable for any Approved Leasing Expenses which are anticipated losses sustained by Borrower due to occur in connection with the re-tenanting insolvency of the space under bank issuing the Lease that was Letter of Credit if Lender has not drawn the subject Letter of such termination (in accordance with the terms and conditions of Section 3.5(a) aboveCredit.
(c) Any amounts constituting a Leasing Advance Funding Shortfall funded by Lender pursuant to Section 2.9.4 hereof shall be transferred by Lender into the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing and provided that each of the conditions precedent set forth in Section 2.9.3 hereof have been satisfied, Lender 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 to be used to pay or reimburse Borrower for Approved Leasing Expenses. 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 on such Approved Leasing Expenses.
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Rollover Reserves. (a) On With respect to each Collateral Property, the date hereof, Borrower shall pay to Lender an amount equal to (i) $360,958.95 (the “Hewlett-Packard TI Deposit”) and (ii) $139,680.00 (the “Apex Systems TI Deposit”). From and after the earlier of (i) April 1, 2008 and (ii) the first (1st) Payment Date following the prepayment of the Tranche B Loan, Borrower shall pay to Lender on each Interest Payment Date an the amount equal to $24,495set forth for such Collateral Property on Exhibit C attached hereto. (such monthly payments are collectively referred to herein as, the “Monthly Rollover Funds”). The Lender will transfer such amounts, including without limitation, the Hewlett-Packard TI Deposit and the Apex Systems TI Deposit, amount into a Subaccount (the “"Rollover Reserve Subaccount”"). The Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments payments received from tenants in connection with the early termination or cancellation of any Leases, including fees, penalties and commissions. If the amount in the Rollover Reserve Subaccount shall exceed the amounts due for Approved Leasing Expenses pursuant to the terms hereof, the Lender shall, in its discretion, return any excess to the Borrower, credit such excess against future payments to the Rollover Reserve Subaccount or allocate such excess to other Subaccounts. If the Lender determines in its reasonable judgment that the funds in the Rollover Reserve Subaccount will be insufficient to pay (or in excess of) the amounts due or to become due for Approved Leasing Expenses, the Lender may increase (or decrease) the monthly contribution required to be made by Borrowerthe Borrower to the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing, the Lender shall disburse funds held in the Rollover Reserve Subaccount to the Borrower, within ten (10) 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 Table of Contents Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at the Borrower’s '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 a certificate from a senior financial officer of the Borrower certifying (1w) that such funds will be used only to pay (or reimburse Borrower for) Approved Leasing Expenses and a description thereof, (2x) that all outstanding trade payables (other than those to be paid from the requested disbursement or those constituting Permitted Indebtednessdisbursement) have been paid in full, (3y) that the same has not been the subject of a previous disbursement, and (4z) that all previous disbursements have been used only to pay (or reimburse the 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 $10,000 to pay (rather than reimburse) Approved Leasing Expenses may, at the Lender’s 's option, be made by joint check payable to the Borrower and the payee of such Approved Leasing Expenses. Notwithstanding anything to the contrary contained in this Section 3.5, (i) funds constituting the Hewlett-Packard TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Hewlett-Packard and (ii) funds constituting the Apex Systems TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Any unused portion of the Hewlett-Packard TI Deposit and/or Apex Systems TI Deposit shall remain in the Rollover Reserve Subaccount for the payment of Approved Leasing Expenses and shall be disbursed in accordance with the provisions of this Section 3.5(a).
(b) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount from the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be applied, at Lender’s election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (b) 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) or (c) funding any Approved Leasing Expenses which are anticipated to occur in connection with the re-tenanting of the space under the Lease that was the subject of such termination (in accordance with the terms and conditions of Section 3.5(a) above.
(c) Any amounts constituting a Leasing Advance Funding Shortfall funded by Lender pursuant to Section 2.9.4 hereof shall be transferred by Lender into the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing and provided that each of the conditions precedent set forth in Section 2.9.3 hereof have been satisfied, Lender 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 to be used to pay or reimburse Borrower for Approved Leasing Expenses. 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 on such Approved Leasing Expenses.
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Rollover Reserves. (a) On If a Rollover Sweep Period has commenced, and no other Cash Management Period is then continuing, then on the date hereof, Borrower shall pay to Lender an amount equal to (i) $360,958.95 (the “Hewlett-Packard TI Deposit”) and (ii) $139,680.00 (the “Apex Systems TI Deposit”). From and after the earlier of (i) April 1, 2008 and (ii) the first (1st) immediately succeeding Payment Date following the prepayment of the Tranche B Loan, Borrower shall pay to Lender and on each Payment Date an amount equal thereafter during the continuance of such Rollover Sweep Period, all Available Cash shall be paid to $24,495. (such monthly payments are collectively referred to herein as, the “Monthly Rollover Funds”)Lender. Lender will transfer such amounts, including without limitation, the Hewlett-Packard TI Deposit and the Apex Systems TI Deposit, amounts into a Subaccount (the “"Rollover Reserve Subaccount”"). Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments payments received by Borrowerfrom tenants in connection with the early termination or cancellation of any Leases, including fees, penalties and commissions. Provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within ten (10) 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 Table of Contents Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s '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 '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 (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 $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. Notwithstanding anything to the contrary contained in this Section 3.5, (i) funds constituting the Hewlett-Packard TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Hewlett-Packard and (ii) funds constituting the Apex Systems TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Any unused portion of the Hewlett-Packard TI Deposit and/or Apex Systems TI Deposit shall remain in the Rollover Reserve Subaccount for the payment of Approved Leasing Expenses and shall be disbursed in accordance with the provisions of this Section 3.5(a).
(b) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount from the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be applied, at Lender’s election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (b) 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) or (c) funding any Approved Leasing Expenses which are anticipated to occur in connection with the re-tenanting of the space under the Lease that was the subject of such termination (in accordance with the terms and conditions of Section 3.5(a) above.
(c) Any amounts constituting a Leasing Advance Funding Shortfall funded by Lender pursuant to Section 2.9.4 hereof shall be transferred by Lender into the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing and provided that each of continuing, the conditions precedent set forth in Section 2.9.3 hereof have been satisfied, Lender shall disburse remaining funds held in the Rollover Reserve Subaccount (to Borrower, the extent not drawn upon pursuant to this Section 25(f)) allocable to any specific portion of the commercial space at the Property which is the subject of the Rollover Sweep Event will be disbursed to Borrower within fifteen (15) 10 days after the delivery by written request therefor, provided that Borrower has delivered (i) evidence reasonably satisfactory to Lender of a request therefor that (but not more often than once per month), y) such commercial space has been re-let pursuant to Leases entered into in increments of at least $5,000 to be used to pay or reimburse Borrower for Approved Leasing Expenses. Any such disbursement of more than $10,000 to pay accordance with this Instrument and (rather than reimbursez) all Approved Leasing Expenses maywhich have been incurred or which Lender anticipates will be incurred with respect to such space have been paid in full and (ii) an estoppel certificate from the applicable tenant occupying such portion of the commercial space at the Property in a form reasonably satisfactory to Lender pursuant to which such tenant certifies to Lender that (1) such tenant has taken occupancy of its demised premises, at Lender’s option, be made by joint check payable (2) all of the conditions precedent to Borrower such tenant's obligation to commence the payment of rent under its Lease have been satisfied (including Borrower's contribution to the cost of any tenant improvement work) and (3) such tenant has commenced the payee on such Approved Leasing Expensespayment of rent under its Lease.
Appears in 1 contract
Samples: Open End Mortgage, Assignment of Leases and Rents and Security Agreement (Acadia Realty Trust)
Rollover Reserves. (a) On the date hereof, Borrower shall pay to Lender an amount equal to (i) $360,958.95 (264,000 on the “Hewlett-Packard TI Deposit”) ----------------- date hereof and (ii) $139,680.00 (the “Apex Systems TI Deposit”). From and after the earlier of (i) April 1, 2008 and (ii) the first (1st) Payment Date following the prepayment of the Tranche B Loan, Borrower shall pay to Lender 54,417 on each Payment Date an amount equal to $24,495. (such monthly payments are collectively referred to herein as, the “Monthly Rollover Funds”)Date. Lender will transfer such amounts, including without limitation, the Hewlett-Packard TI Deposit and the Apex Systems TI Deposit, amounts into a Subaccount (the “"Rollover Reserve Subaccount”Subaccount "). Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments payments received from tenants in connection with the early termination or cancellation of any Leases, including fees, penalties and commissions. If Lender determines in its reasonable judgment that the funds in the Rollover Reserve Subaccount will be insufficient to pay (or in excess of) the amounts due or to become due for Approved Leasing Expenses, Lender may increase (or decrease) the monthly contribution required to be made by Borrower to the Rollover Reserve Subaccount. Additionally, without limiting the foregoing, at the end of each twelve month period during the Term, Lender shall review the actual amount paid by (or reimbursed by) Borrower for the Approved Leasing Expenses relating to the normalized rollover leasing expenses at the Properties during such period and the then current balance held in the Rollover Reserve Subaccount, and provided that (i) such rollover leasing expenses were addressed to Lender's satisfaction (e.g., any new Leases entered into during such period comply with the provisions of Section 5.9 and provide for rental rates at least equal to the rental rates provided for in the applicable expired or terminated Lease) and (ii) the actual amount paid by (or reimbursed by) Borrower for such Approved Leasing Expenses are less than the amount that was anticipated by Lender as being necessary to address such rollover leasing expenses during such period, then Lender, may in its sole and absolute discretion, release a portion (representing such cost savings) of the then balance held in the Rollover Reserve Subaccount to Borrower. Provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within ten (10) 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 Table of Contents Leasing Expense; (ii) if in excess of $10,000, Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s '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 's Certificate certifying that , to the best of Borrower's knowledge, (1w) that such funds will be used only to pay (or reimburse Borrower for) Approved Leasing Expenses and a description thereof, (2x) that all outstanding trade payables (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) have been paid in full, (3y) that the same has not been the subject of a previous disbursement, and (4z) 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 During a Cash Management Period, any such disbursement of more than $10,000 to pay (rather than reimburse) Approved Leasing Expenses may, at Lender’s 's option, be made by joint check payable to Borrower and the payee of such Approved Leasing Expenses. Notwithstanding anything to the contrary contained in this Section 3.5, (i) funds constituting the Hewlett-Packard TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Hewlett-Packard and (ii) funds constituting the Apex Systems TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Any unused portion of the Hewlett-Packard TI Deposit and/or Apex Systems TI Deposit shall remain in the Rollover Reserve Subaccount for the payment of Approved Leasing Expenses and shall be disbursed in accordance with the provisions of this Section 3.5(a).
(b) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount from the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be applied, at Lender’s election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (b) 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) or (c) funding any Approved Leasing Expenses which are anticipated to occur in connection with the re-tenanting of the space under the Lease that was the subject of such termination (in accordance with the terms and conditions of Section 3.5(a) above.
(c) Any amounts constituting a Leasing Advance Funding Shortfall funded by Lender pursuant to Section 2.9.4 hereof shall be transferred by Lender into the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing and provided that each of the conditions precedent set forth in Section 2.9.3 hereof have been satisfied, Lender 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 to be used to pay or reimburse Borrower for Approved Leasing Expenses. 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 on such Approved Leasing Expenses.
Appears in 1 contract
Rollover Reserves. (a) On the date hereof, Borrower shall pay to Lender an amount equal to (i) $360,958.95 (the “Hewlett-Packard TI Deposit”) and (ii) $139,680.00 (the “Apex Systems TI Deposit”). From and after the earlier of (i) April 1, 2008 and (ii) the first (1st) Payment Date following the prepayment of the Tranche B Loan, Borrower shall pay to Lender 4,168 on each Payment Date an amount equal to $24,495. (such monthly payments are collectively referred to herein as, the “Monthly Rollover Funds”)Date. Lender will transfer such amounts, including without limitation, the Hewlett-Packard TI Deposit and the Apex Systems TI Deposit, amount into a Subaccount (the “"Rollover Reserve Subaccount”"). Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within ten fifteen (1015) 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 Table of Contents Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s '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 '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 (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 $10,000 to pay (rather than reimburse) Approved Leasing Expenses may, at Lender’s 's option, be made by joint check payable to Borrower and the payee of such Approved Leasing Expenses. Notwithstanding anything to the contrary contained in this Section 3.5, (i) funds constituting the Hewlett-Packard TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect 3.3 to the space at contrary, if Borrower shall enter into an Approved Ingram Micro Extension on or beforx Xxxxmber 31, 2005, then Borrower shall no longer be required to make deposits into the Property leased Rollover Reserve Subaccount pursuant to Hewlett-Packard and this paragraph (iia) and, provided that no Event of Default or Cash Management Period is then continuing, any funds constituting the Apex Systems TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Any unused portion of the Hewlett-Packard TI Deposit and/or Apex Systems TI Deposit shall remain then on deposit in the Rollover Reserve Subaccount for the payment of Approved Leasing Expenses and shall be disbursed in accordance with the provisions to Borrower within 5 days of this Section 3.5(a)Borrower's request therefor.
(b) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount from the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be applied, at Lender’s 's election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (b) 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) or (c) funding any Approved Leasing Expenses (or Approved Major Lease Leasing Expenses, if applicable) which are anticipated to occur in connection with the re-tenanting of the space under the Lease that was the subject of such termination (in accordance with the terms and conditions of Section 3.5(a) aboveabove or Section 3.5(c) below, if applicable).
(c) Any amounts constituting On each Payment Date occurring during the continuance of a Leasing Advance Funding Shortfall funded by Lender pursuant to Section 2.9.4 hereof Lease Sweep Period (provided no Cash Management Period is then continuing (other than a Cash Management Period triggered solely as a result of a Lease Sweep Period)), all Available Cash shall be transferred by paid to Lender. Lender will transfer such amount into a Subaccount (the "Special Rollover Reserve Subaccount"). Borrower shall also pay to Lender for transfer into the Special Rollover Reserve Subaccount any Lease Termination Payments received from any Major Tenant. Provided that no Default or Event of Default has occurred and is continuing and provided that each of the conditions precedent set forth in Section 2.9.3 hereof have been satisfiedcontinuing, Lender shall disburse funds held in the Special 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 to 5,000, provided (i) such disbursement is for an Approved Major Lease 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 Major Lease 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 for) Approved Major Lease Leasing Expenses and a description thereof, (2) that all outstanding trade payables (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 Major Lease Leasing Expenses, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor. Any such disbursement of more than $10,000 to pay (rather than reimburse) Approved Major Lease Leasing Expenses may, at Lender’s 's option, be made by joint check payable to Borrower and the payee on of such Approved Major Lease Leasing Expenses. Provided no Default or Event of Default is continuing, upon the termination of the subject Lease Sweep Period, and Lender's receipt of satisfactory evidence that all Approved Major Lease Leasing Expenses incurred in connection therewith (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 funds (if any) remaining in the Special Rollover Reserve Subaccount that have been deposited therein as a result of such Lease Sweep Period 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 Cash Collateral Subaccount, to be applied in accordance with Section 3.9 hereof.
Appears in 1 contract
Samples: Loan Agreement (First Union Real Estate Equity & Mortgage Investments)
Rollover Reserves. (a) 3.5.1 General On the date hereof, Borrower shall pay to Lender an amount equal to (i) $360,958.95 (the “Hewlett-Packard TI Deposit”) and (ii) $139,680.00 (the “Apex Systems TI Deposit”). From and after the earlier of (i) April 1, 2008 and (ii) the first (1st) Payment Date following the prepayment of the Tranche B Loan, Borrower shall pay to Lender on each Payment Date an amount equal occurring during the continuance of a Lease Sweep Period (provided no Cash Management Period is then continuing (other than a Cash Management Period triggered solely as a result of a Lease Sweep Period)), all Available Cash shall be paid to $24,495. (such monthly payments are collectively referred to herein as, the “Monthly Rollover Funds”)Lender. Lender will transfer such amounts, including without limitation, the Hewlett-Packard TI Deposit and the Apex Systems TI Deposit, amount into a Subaccount (the “Rollover Reserve Subaccount”). Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within ten fifteen (1015) 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 Table Major Lease Leasing Expense (or any other Approved Leasing Expense if the funds in question are comprised of Contents Leasing ExpenseLease Termination Payments that have been deposited into the Rollover Reserve Subaccount on account of any other Lease); (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 Major Lease Leasing ExpenseExpense (or any other Approved Leasing Expense if the funds in question are comprised of Lease Termination Payments that have been deposited into the Rollover Reserve Subaccount on account of any other Lease); 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 Major Lease Leasing Expenses (or any other Approved Leasing Expense if the funds in question are comprised of Lease Termination Payments that have been deposited into the Rollover Reserve Subaccount on account of any other Lease) and a description thereof, (2) that all outstanding trade payables (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 Major Lease Leasing ExpensesExpenses (or any other Approved Leasing Expense if the funds in question are comprised of Lease Termination Payments that have been deposited into the Rollover Reserve Subaccount on account of any other Lease), and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor. 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 Major Lease Leasing Expenses. Notwithstanding anything to the contrary contained in this Section 3.5, Expenses (i) funds constituting the Hewlett-Packard TI Deposit shall be allocated to pay only those or any other Approved Leasing Expenses with respect to Expense if the space at the Property leased to Hewlett-Packard and (ii) funds constituting the Apex Systems TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Any unused portion in question are comprised of the Hewlett-Packard TI Deposit and/or Apex Systems TI Deposit shall remain in the Rollover Reserve Subaccount for the payment of Approved Leasing Expenses and shall be disbursed in accordance with the provisions of this Section 3.5(a).
(b) Any Lease Termination Payments and any other funds that have been deposited into the Rollover Reserve Subaccount from on account of any other Lease). Provided no Event of Default is continuing, upon the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be appliedtermination of the subject Lease Sweep Period, at and Lender’s election, towards either receipt of satisfactory evidence that all Approved Major Lease Leasing Expenses incurred in connection therewith (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure and any other tenant default under such Lease), (b) 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) or (c) funding any Approved Leasing Expenses which are anticipated to occur expenses in connection with the re-tenanting of the space 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 Lease that was payment of full rent (including Borrower’s contribution to the subject cost of such termination (in accordance with the terms and conditions of Section 3.5(aany tenant improvement work) above.
(c) Any amounts constituting a Leasing Advance Funding Shortfall funded by Lender pursuant to Section 2.9.4 hereof shall be transferred by Lender into the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing and provided that each of the conditions precedent set forth in Section 2.9.3 hereof have been satisfied), Lender shall disburse any funds held (if any) remaining in the Rollover Reserve Subaccount that have been deposited therein as a result of such Lease Sweep Period shall be disbursed to Borrower; provided, however, if a Cash Management Period is then continuing, then no such funds shall be disbursed to Borrower, within fifteen (15) days after and all such funds shall instead be deposited into the delivery by Borrower to Lender of a request therefor (but not more often than once per month)Cash Collateral Subaccount, in increments of at least $5,000 to be used to pay or reimburse Borrower for Approved Leasing Expenses. 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 on such Approved Leasing Expensesapplied in accordance with Section 3.9 hereof.
Appears in 1 contract
Rollover Reserves. (a) On the date hereof, Borrower shall pay to Lender an amount equal to (i) $360,958.95 (the “Hewlett-Packard TI Deposit”) and (ii) $139,680.00 (the “Apex Systems TI Deposit”). From and after the earlier of (i) April 1, 2008 and (ii) the first (1st) Payment Date following the prepayment of the Tranche B Loan, Borrower shall pay to Lender 5,000.00 on each Payment Date an amount equal to $24,495. (such monthly payments are collectively referred to herein as, the “Monthly Rollover Funds”)Date. Lender will transfer such amounts, including without limitation, the Hewlett-Packard TI Deposit and the Apex Systems TI Deposit, amount into a Subaccount (the “Rollover Reserve Subaccount”). However, notwithstanding the above, Borrower shall not be required to make contributions to the Rollover Reserve Subaccount at such time as the total amount in the Rollover Reserve Subaccount equals or exceeds $220,000. If such amount shall, after reaching or exceeding $220,000, fall below such amount, Borrower’s obligation to pay $5,000.00 on each Payment Date shall recommence. Without being subject to the foregoing cap, Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments payments received from tenants in connection with the early termination or cancellation of any Leases, including fees, penalties and commissions. If Lender determines in its reasonable judgment that the funds in the Rollover Reserve Subaccount will be insufficient to pay (or in excess of) the amounts due or to become due for Approved Leasing Expenses, Lender may increase (or decrease) the monthly contribution required to be made by BorrowerBorrower to the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse funds held in the Rollover Reserve Subaccount to Borrower, Borrower within ten fifteen (1015) 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 Table of Contents 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 (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 (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) 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. Notwithstanding anything to the contrary contained in this Section 3.5, (i) funds constituting the Hewlett-Packard TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Hewlett-Packard and (ii) funds constituting the Apex Systems TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Any unused portion of the Hewlett-Packard TI Deposit and/or Apex Systems TI Deposit shall remain in the Rollover Reserve Subaccount for the payment of Approved Leasing Expenses and shall be disbursed in accordance with the provisions of this Section 3.5(a).
(b) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount from the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be applied, at Lender’s election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (b) 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) or (c) funding any Approved Leasing Expenses which are anticipated to occur in connection with the re-tenanting of the space under the Lease that was the subject of such termination (in accordance with the terms and conditions of Section 3.5(a) above.
(c) Any amounts constituting a Leasing Advance Funding Shortfall funded by Lender pursuant to Section 2.9.4 hereof shall be transferred by Lender into the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing and provided that each of the conditions precedent set forth in Section 2.9.3 hereof have been satisfied, Lender 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 to be used to pay or reimburse Borrower for Approved Leasing Expenses. 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 on such Approved Leasing Expenses.
Appears in 1 contract
Rollover Reserves. (a) On the date hereof, Borrower shall pay to Lender an amount equal to (i) $360,958.95 (the “Hewlett-Packard TI Deposit”) and (ii) $139,680.00 (the “Apex Systems TI Deposit”). From and after the earlier of (i) April 1, 2008 and (ii) the first (1st) Payment Date following the prepayment of the Tranche B Loan, Borrower shall pay to Lender 3,800 on each Payment Date an amount (the "MONTHLY ROLLOVER PAYMENT"); provided, however, Borrower shall not be required to make any Monthly Rollover Payment on any Payment Date when the balance on deposit in the Rollover Reserve Subaccount is equal to or greater than $24,495125,000 (excluding any amounts deposited pursuant to the fourth sentence of this subsection (f)). (Additionally, if a Rollover Sweep Period has commenced, and no other Cash Management Period is then continuing, then on the immediately succeeding Payment Date and on each Payment Date thereafter during the continuance of such monthly payments are collectively referred Rollover Sweep Period, all Available Cash shall be paid to herein as, the “Monthly Rollover Funds”)Lender. Lender will transfer such amounts, including without limitation, the Hewlett-Packard TI Deposit and the Apex Systems TI Deposit, amounts into a Subaccount (the “Rollover Reserve Subaccount”"ROLLOVER RESERVE SUBACCOUNT"). Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments payments received by Borrowerfrom tenants in connection with the early termination or cancellation of any Leases, including fees, penalties and commissions. Provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within ten (10) 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 Table of Contents Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s '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 '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 (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 $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. Notwithstanding anything to the contrary contained in this Section 3.5, (i) funds constituting the Hewlett-Packard TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Hewlett-Packard and (ii) funds constituting the Apex Systems TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Any unused portion of the Hewlett-Packard TI Deposit and/or Apex Systems TI Deposit shall remain in the Rollover Reserve Subaccount for the payment of Approved Leasing Expenses and shall be disbursed in accordance with the provisions of this Section 3.5(a).
(b) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount from the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be applied, at Lender’s election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (b) 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) or (c) funding any Approved Leasing Expenses which are anticipated to occur in connection with the re-tenanting of the space under the Lease that was the subject of such termination (in accordance with the terms and conditions of Section 3.5(a) above.
(c) Any amounts constituting a Leasing Advance Funding Shortfall funded by Lender pursuant to Section 2.9.4 hereof shall be transferred by Lender into the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing and provided that each of continuing, the conditions precedent set forth in Section 2.9.3 hereof have been satisfied, Lender shall disburse remaining funds held in the Rollover Reserve Subaccount (to Borrower, the extent not drawn upon pursuant to this Section 25(f)) allocable to any specific portion of the commercial space at the Property which is the subject of the Rollover Sweep Event will be disbursed to Borrower within fifteen (15) 10 days after the delivery by written request therefor, provided that Borrower has delivered (i) evidence reasonably satisfactory to Lender of a request therefor that (but not more often than once per month), y) such commercial space has been re-let pursuant to Leases entered into in increments of at least $5,000 to be used to pay or reimburse Borrower for Approved Leasing Expenses. Any such disbursement of more than $10,000 to pay accordance with this Instrument and (rather than reimbursez) all Approved Leasing Expenses maywhich have been incurred or which Lender anticipates will be incurred with respect to such space have been paid in full and (ii) an estoppel certificate from the applicable tenant occupying such portion of the commercial space at the Property in a form reasonably satisfactory to Lender pursuant to which such tenant certifies to Lender that (1) such tenant has taken occupancy of its demised premises, at Lender’s option, be made by joint check payable (2) all of the conditions precedent to Borrower such tenant's obligation to commence the payment of rent under its Lease have been satisfied (including Borrower's contribution to the cost of any tenant improvement work) and (3) such tenant has commenced the payee on such Approved Leasing Expensespayment of rent under its Lease.
Appears in 1 contract
Samples: Mortgage, Assignment of Leases and Rents and Security Agreement (Acadia Realty Trust)
Rollover Reserves. (a) On the date hereof, Borrower shall pay to Lender an amount equal to (i) $360,958.95 (10,000,000 on the “Hewlett-Packard TI Deposit”) and (ii) $139,680.00 (the “Apex Systems TI Deposit”). From and after the earlier of (i) April 1, 2008 and (ii) the first (1st) Payment Date following the prepayment of the Tranche B Loan, Borrower shall pay to Lender on each Payment Date an amount equal to $24,495. (such monthly payments are collectively referred to herein as, the “Monthly Rollover Funds”)date hereof. Lender will transfer such amounts, including without limitation, the Hewlett-Packard TI Deposit and the Apex Systems TI Deposit, amount into a Subaccount (the “Rollover Reserve Subaccount”). In lieu of a requirement hereunder for an additional $10,000,000 to be deposited into the Rollover Reserve Subaccount, Guarantor, pursuant to the Guaranty, has (among other obligations thereunder) guaranteed payment and performance in full of all Approved Leasing Expenses with respect to Leases hereafter executed and all work relating thereto and agreed to pay to Lender, upon Lender’s demand following the occurrence and during the continuance of an Event of Default, an amount equal to the Guaranty Limit Amount, determined as the sum of various amounts, including an amount equal to $10,000,000 (subject to reduction as provided below, the “Rollover Reserve Offset Amount”). Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within ten (10) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments minimum amounts of at least $5,000, provided (i) such disbursement is for an Approved Table Leasing Expenses with respect to Leases hereafter executed (it being acknowledged that leasing costs with respect to Leases existing as of Contents Leasing Expensethe date hereof shall not qualify for disbursements from the Rollover Reserve Subaccount); (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 ExpenseExpenses; 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 (other than those not yet due and payable or 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 with respect to the first $10,000,000 in disbursements from the Rollover Reserve Subaccount (each disbursement thereof in an amount equal to 50% of the related Approved Leasing Expenses), the remaining 50% portion of such Approved Leasing Expenses not paid from such previous disbursements has also been paid, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor; and (iv) the first $10,000,000 in aggregate disbursements from the Rollover Reserve Subaccount for (x) Approved Leasing Expenses pursuant to this Section 3.5(a) or (y) on account of Rollover Rent Abatements pursuant to Section 3.5(b) below shall be made in an amount equal to 50% of such Approved Leasing Expenses for which the provisions of the foregoing clauses (i)-(iii) are satisfied, and upon each such 50% disbursement and payment of 100% of the related Approved Leasing Expenses or expiration of the related Rollover Rent Abatement Periods to which such disbursement relates (as evidenced to Lender’s reasonable satisfaction), the Rollover Reserve Offset Amount shall reduce dollar for dollar in the amount of such disbursements from the Rollover Reserve Subaccount until the Rollover Reserve Offset Amount reduces to zero, with a corresponding dollar for dollar reduction of the Guaranty Limit Amount. For example, if disbursements from the Rollover Reserve Subaccount on account of Approved Leasing Expenses are $5,000,000 (on account of $10,000,000 in Approved Leasing Expenses qualifying under clause (i)-(iii) of the foregoing provision), and disbursements from the Rollover Reserve Subaccount on account of Rollover Rent Abatements are $500,000 (on account of Rollover Rent Abatement Periods expiring with respect to $1,000,000 in Rollover Rent Abatements), the Rollover Reserve Offset Amount shall, upon payment of 100% of the related Approved Leasing Expenses or expiration of the related Rollover Rent Abatement Periods to which such disbursements relate (as evidenced to Lender’s reasonable satisfaction), decrease by $5,500,000, with a resulting Rollover Reserve Offset Amount of $4,500,000. 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. Notwithstanding anything If Lender receives the Rollover Reserve Offset Amount from Guarantor under the Guaranty, Lender shall transfer the same to the contrary contained Rollover Reserve Subaccount to be applied as provided in this Section 3.5, (i) funds constituting subject to Lender’s right to apply the Hewlett-Packard TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Hewlett-Packard and (ii) funds constituting the Apex Systems TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Any unused portion of the Hewlett-Packard TI Deposit and/or Apex Systems TI Deposit shall remain same otherwise as set forth in the Rollover Reserve Subaccount for the payment of Approved Leasing Expenses and shall be disbursed in accordance with the provisions of this Section 3.5(a)3.10 below.
(b) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount from the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be applied, at Lender’s election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (b) 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) or (c) funding any Approved Leasing Expenses which are anticipated to occur in connection with the re-tenanting of the space under the Lease that was the subject of such termination (in accordance with the terms and conditions of Section 3.5(a) above.
(c) Any amounts constituting a Leasing Advance Funding Shortfall funded by Lender pursuant to Section 2.9.4 hereof shall be transferred by Lender into the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing and provided that each of the conditions precedent set forth in Section 2.9.3 hereof have been satisfiedexists, Lender funds shall disburse funds held in be disbursed from the Rollover Reserve Subaccount to Borrowerthe Deposit Account (for application in the same manner as rents transferred from the Clearing Account to the Deposit Account) as Rollover Rent Abatement Periods expire with respect to any applicable Leases, within fifteen ten (1510) days after the delivery by Borrower to Lender of a request therefor (but not more often than once per month), in increments minimum amounts of at least $5,000 5,000, provided: (i) the request for disbursement is accompanied by (A) an Officer’s Certificate certifying (1) that such funds are for a Rollover Rent Abatement for a Rollover Rent Abatement Period that has expired pursuant to the applicable Lease to which it relates, and (2) that the same has not been the subject of a previous disbursement, and (B) reasonably detailed supporting documentation as to the amount thereof; (ii) the amount disbursed in any instance shall (subject to clause (iii) below) be an amount equal to 50% of the applicable Rollover Rent Abatement with respect to the applicable Lease for the Rollover Rent Abatement Period that has expired under such Lease; and (iii) the total amount that shall be disbursed from the Rollover Reserve Subaccount pursuant to this Section 3.5(b) shall in no event exceed an aggregate total of $1,500,000 (on account of Rollover Rent Abatement Periods expiring with respect to $3,000,000 in Rollover Rent Abatements). For example, if a Lease has a Rollover Rent Abatement of $50,000 per month for 20 months after the date hereof, the amount to be used disbursed from the Rollover Reserve Subaccount to pay or reimburse Borrower the Deposit Account on account of such Lease would be $25,000 per month for Approved Leasing Expenses. Any such disbursement of more than 20 months, resulting in a corresponding $10,000 to pay (rather than reimburse) Approved Leasing Expenses may, at Lender’s option, be made by joint check payable to Borrower and 25,000 per month dollar for dollar decrease in the payee on such Approved Leasing ExpensesRollover Reserve Offset Amount.
Appears in 1 contract
Rollover Reserves. (a) On the date hereof, Borrower shall pay to Lender an amount equal to (i) $360,958.95 105,284.66 (the “Hewlett-Packard Integon TI Deposit”) and (ii) $139,680.00 106,702 (the “Apex Systems Xxxx Publishing TI Deposit”). From and after the earlier of (i) April 1March 6, 2008 and (ii) the first (1st) Payment Date following the prepayment of the Tranche B Floating Rate Loan, Borrower shall pay to Lender on each Payment Date an amount equal to $24,495. 21,173 (such monthly payments are collectively referred to herein as, the “Monthly Rollover Funds”). Lender will transfer such amounts, including without limitation, the Hewlett-Packard Integon TI Deposit and the Apex Systems Xxxx Publishing TI Deposit, into a Subaccount (the “Rollover Reserve Subaccount”). Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. Provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within ten (10) 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 Table of Contents 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 (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 $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. Notwithstanding anything to the contrary contained in this Section 3.5, (i) funds constituting the Hewlett-Packard Integon TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Hewlett-Packard Integon Insurance and (ii) funds constituting the Apex Systems Xxxx Publishing TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Xxxx Publishing. Any unused portion of the Hewlett-Packard Integon TI Deposit and/or Apex Systems the Xxxx Publishing TI Deposit shall remain in the Rollover Reserve Subaccount for the payment of Approved Leasing Expenses and shall be disbursed in accordance with the provisions of this Section 3.5(a).
(b) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount from the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be applied, at Lender’s election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (b) 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) or (c) funding any Approved Leasing Expenses which are anticipated to occur in connection with the re-tenanting of the space under the Lease that was the subject of such termination (in accordance with the terms and conditions of Section 3.5(a) above.
(c) Any amounts constituting a Leasing Advance Funding Shortfall funded by Lender pursuant to Section 2.9.4 hereof shall be transferred by Lender into the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing and provided that each of the conditions precedent set forth in Section 2.9.3 hereof have been satisfied, Lender 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 to be used to pay or reimburse Borrower for Approved Leasing Expenses. 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 on such Approved Leasing Expenses.
Appears in 1 contract
Rollover Reserves. (a) On the date hereof, Borrower shall pay to Lender an amount equal to (i) $360,958.95 (the “Hewlett-Packard TI Deposit”) and (ii) $139,680.00 (the “Apex Systems TI Deposit”). From and after the earlier of (i) April 1, 2008 and (ii) the first (1st) Payment Date following the prepayment of the Tranche B Loan, Borrower shall pay to Lender 6,045 on each Payment Date an amount (the "MONTHLY ROLLOVER PAYMENT"); provided, however, Borrower shall not be required to make any Monthly Rollover Payment on any Payment Date when the balance on deposit in the Rollover Reserve Subaccount is equal to or greater than $24,495125,000 (excluding any amounts deposited pursuant to the fourth sentence of this subsection (f)). (Additionally, if a Rollover Sweep Period has commenced, and no other Cash Management Period is then continuing, then on the immediately succeeding Payment Date and on each Payment Date thereafter during the continuance of such monthly payments are collectively referred Rollover Sweep Period, all Available Cash shall be paid to herein as, the “Monthly Rollover Funds”)Lender. Lender will transfer such amounts, including without limitation, the Hewlett-Packard TI Deposit and the Apex Systems TI Deposit, amounts into a Subaccount (the “Rollover Reserve Subaccount”"ROLLOVER RESERVE SUBACCOUNT"). Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments payments received by Borrowerfrom tenants in connection with the early termination or cancellation of any Leases, including fees, penalties and commissions. Provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within ten (10) 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 Table of Contents Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s '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 '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 (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 $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. Notwithstanding anything to the contrary contained in this Section 3.5, (i) funds constituting the Hewlett-Packard TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Hewlett-Packard and (ii) funds constituting the Apex Systems TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Any unused portion of the Hewlett-Packard TI Deposit and/or Apex Systems TI Deposit shall remain in the Rollover Reserve Subaccount for the payment of Approved Leasing Expenses and shall be disbursed in accordance with the provisions of this Section 3.5(a).
(b) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount from the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be applied, at Lender’s election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (b) 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) or (c) funding any Approved Leasing Expenses which are anticipated to occur in connection with the re-tenanting of the space under the Lease that was the subject of such termination (in accordance with the terms and conditions of Section 3.5(a) above.
(c) Any amounts constituting a Leasing Advance Funding Shortfall funded by Lender pursuant to Section 2.9.4 hereof shall be transferred by Lender into the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing and provided that each of continuing, the conditions precedent set forth in Section 2.9.3 hereof have been satisfied, Lender shall disburse remaining funds held in the Rollover Reserve Subaccount (to Borrower, the extent not drawn upon pursuant to this Section 25(f)) allocable to any specific portion of the commercial space at the Property which is the subject of the Rollover Sweep Event will be disbursed to Borrower within fifteen (15) 10 days after the delivery by written request therefor, provided that Borrower has delivered (i) evidence reasonably satisfactory to Lender of a request therefor that (but not more often than once per month), y) such commercial space has been re-let pursuant to Leases entered into in increments of at least $5,000 to be used to pay or reimburse Borrower for Approved Leasing Expenses. Any such disbursement of more than $10,000 to pay accordance with this Instrument and (rather than reimbursez) all Approved Leasing Expenses maywhich have been incurred or which Lender anticipates will be incurred with respect to such space have been paid in full and (ii) an estoppel certificate from the applicable tenant occupying such portion of the commercial space at the Property in a foamm reasonably satisfactory to Lender pursuant to which such tenant certifies to Lender that (1) such tenant has taken occupancy of its demised premises, at Lender’s option, be made by joint check payable (2) all of the conditions precedent to Borrower such tenant's obligation to commence the payment of rent under its Lease have been satisfied (including Borrower's contribution to the cost of any tenant improvement work) and (3) such tenant has commenced the payee on such Approved Leasing Expensespayment of rent under its Lease.
Appears in 1 contract
Samples: Mortgage, Assignment of Leases and Rents and Security Agreement (Acadia Realty Trust)
Rollover Reserves. (a) On the date hereof, Borrower shall pay to Lender an amount equal to (i) $360,958.95 (the “Hewlett-Packard TI Deposit”) and (ii) $139,680.00 (the “Apex Systems TI Deposit”). From and after the earlier of (i) April 1, 2008 and (ii) the first (1st) Payment Date following the prepayment of the Tranche B Loan, Borrower shall pay to Lender 2,767.59 on each Payment Date an amount equal to $24,495. (such monthly payments are collectively referred to herein as, the “Monthly Rollover Funds”)Date. Lender will transfer such amounts, including without limitation, the Hewlett-Packard TI Deposit and the Apex Systems TI Deposit, amount into a Subaccount (the “Rollover Reserve Subaccount”). Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments payments received from Tenants in connection with the early termination or cancellation of any Leases, including fees, penalties and commissions. If Lender determines in its reasonable judgment that the funds in the Rollover Reserve Subaccount will be insufficient to pay (or in excess of) the amounts due or to become due for Approved Leasing Expenses, Lender may increase (or decrease) the monthly contribution required to be made by BorrowerBorrower to the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse funds held in the Rollover Reserve Subaccount to Borrower, Borrower within ten fifteen (1015) 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 Table of Contents 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 (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 (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) 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. Notwithstanding anything to the contrary contained in this Section 3.5, .
(ib) funds constituting the Hewlett-Packard TI Deposit The maximum balance Borrower shall be allocated required to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Hewlett-Packard and (ii) funds constituting the Apex Systems TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Any unused portion of the Hewlett-Packard TI Deposit and/or Apex Systems TI Deposit shall remain maintain in the Rollover Reserve Subaccount for the payment of Approved Leasing Expenses and shall be disbursed in accordance with $270.400.00 (the provisions “Rollover Capped Amount”); provided, however, notwithstanding whether the then existing balance of this Section 3.5(a).
(b) Any Lease Termination Payments and any other funds deposited the Rollover Reserve Subaccount equals or exceeds the Rollover Capped Amount, Borrower shall pay to Lender for transfer into the Rollover Reserve Subaccount all payments received from the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be applied, at Lender’s election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (b) 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) or (c) funding any Approved Leasing Expenses which are anticipated to occur tenants in connection with the re-tenanting early termination or cancellation of any Leases, including fees and penalties. If at any time during the term of the space under Loan the Lease that was the subject balance of such termination (in accordance with the terms and conditions of Section 3.5(a) above.
(c) Any amounts constituting a Leasing Advance Funding Shortfall funded by Lender pursuant to Section 2.9.4 hereof shall be transferred by Lender into the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing and provided that each of the conditions precedent set forth in Section 2.9.3 hereof have been satisfied, Lender shall disburse funds held in the Rollover Reserve Subaccount to Borrowershall fall below $135,000.00, within fifteen (15) days after the delivery by Borrower shall pay to Lender $2,767.59 on each Payment Date thereafter until the balance of a request therefor (but not more often than once per month), in increments of at least $5,000 to be used to pay the Rollover Reserve Subaccount equals or reimburse Borrower for Approved Leasing Expenses. 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 exceeds the payee on such Approved Leasing ExpensesRollover Capped Amount.
Appears in 1 contract
Rollover Reserves. (a) On With respect to each Collateral Property, the date hereof, Borrower shall pay to Lender an amount equal to (i) $360,958.95 (the “Hewlett-Packard TI Deposit”) and (ii) $139,680.00 (the “Apex Systems TI Deposit”). From and after the earlier of (i) April 1, 2008 and (ii) the first (1st) Payment Date following the prepayment of the Tranche B Loan, Borrower shall pay to Lender on each Interest Payment Date an the amount equal to $24,495set forth for such Collateral Property on Exhibit C attached hereto. (such monthly payments are collectively referred to herein as, the “Monthly Rollover Funds”). The Lender will transfer such amounts, including without limitation, the Hewlett-Packard TI Deposit and the Apex Systems TI Deposit, amount into a Subaccount (the “"Rollover Reserve Subaccount”"). The Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments payments received from tenants in connection with the early termination or cancellation of any Leases, including fees, penalties and commissions. If the amount in the Rollover Reserve Subaccount shall exceed the amounts due for Approved Leasing Expenses pursuant to the terms hereof, the Lender shall, in its discretion, return any excess to the Borrower, credit such excess against future payments to the Rollover Reserve Subaccount or allocate such excess to other Subaccounts. If the Lender determines in its reasonable judgment that the funds in the Rollover Reserve Subaccount will be insufficient to pay (or in excess of) the amounts due or to become due for Approved Leasing Expenses, the Lender may increase (or decrease) the monthly contribution required to be made by Borrowerthe Borrower to the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing, the Lender shall disburse funds held in the Rollover Reserve Subaccount to the Borrower, within ten (10) 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 Table of Contents Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at the Borrower’s '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 a certificate from a senior financial officer of the Borrower certifying (1w) that such funds will be used only to pay (or reimburse Borrower for) Approved Leasing Expenses and a description thereof, (2x) that all outstanding trade payables (other than those to be paid from the requested disbursement or those constituting Permitted Indebtednessdisbursement) have been paid in full, (3y) that the same has not been the subject of a previous disbursement, and (4z) that all previous disbursements have been used only to pay (or reimburse the 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 $10,000 to pay (rather than reimburse) Approved Leasing Expenses may, at the Lender’s 's option, be made by joint check payable to the Borrower and the payee of such Approved Leasing Expenses. Notwithstanding anything to the contrary contained in this Section 3.5, (i) funds constituting the Hewlett-Packard TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Hewlett-Packard and (ii) funds constituting the Apex Systems TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Any unused portion of the Hewlett-Packard TI Deposit and/or Apex Systems TI Deposit shall remain in the Rollover Reserve Subaccount for the payment of Approved Leasing Expenses and shall be disbursed in accordance with the provisions of this Section 3.5(a).
(b) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount from the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be applied, at Lender’s election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (b) 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) or (c) funding any Approved Leasing Expenses which are anticipated to occur in connection with the re-tenanting of the space under the Lease that was the subject of such termination (in accordance with the terms and conditions of Section 3.5(a) above.
(c) Any amounts constituting a Leasing Advance Funding Shortfall funded by Lender pursuant to Section 2.9.4 hereof shall be transferred by Lender into the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing and provided that each of the conditions precedent set forth in Section 2.9.3 hereof have been satisfied, Lender 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 to be used to pay or reimburse Borrower for Approved Leasing Expenses. 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 on such Approved Leasing Expenses.<PAGE>
Appears in 1 contract
Samples: Loan Agreement
Rollover Reserves. (a) On the date hereof, Borrower shall pay to Lender an amount equal to (i) $360,958.95 (the “Hewlett-Packard TI Deposit”) and (ii) $139,680.00 (the “Apex Systems TI Deposit”). From and after the earlier of (i) April 1, 2008 and (ii) the first (1st) Payment Date following the prepayment of the Tranche B Loan, Borrower shall pay to Lender 10,636.13 on each Payment Date an amount (the "MONTHLY ROLLOVER PAYMENT"); provided, however, Borrower shall not be required to make any Monthly Rollover Payment on any Payment Date when the balance on deposit in the Rollover Reserve Subaccount is equal to or greater than $24,495125,000 (excluding any amounts deposited pursuant to the fourth sentence of this subsection (f)). (Additionally, if a Rollover Sweep Period has commenced, and no other Cash Management Period is then continuing, then on the immediately succeeding Payment Date and on each Payment Date thereafter during the continuance of such monthly payments are collectively referred Rollover Sweep Period, all Available Cash shall be paid to herein as, the “Monthly Rollover Funds”)Lender. Lender will transfer such amounts, including without limitation, the Hewlett-Packard TI Deposit and the Apex Systems TI Deposit, amounts into a Subaccount (the “Rollover Reserve Subaccount”"ROLLOVER RESERVE SUBACCOUNT"). Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments payments received by Borrowerfrom tenants in connection with the early termination or cancellation of any Leases, including fees, penalties and commissions. Provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within ten (10) 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 Table of Contents Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s '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 '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 (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 $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. Notwithstanding anything to the contrary contained in this Section 3.5, (i) funds constituting the Hewlett-Packard TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Hewlett-Packard and (ii) funds constituting the Apex Systems TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Any unused portion of the Hewlett-Packard TI Deposit and/or Apex Systems TI Deposit shall remain in the Rollover Reserve Subaccount for the payment of Approved Leasing Expenses and shall be disbursed in accordance with the provisions of this Section 3.5(a).
(b) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount from the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be applied, at Lender’s election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (b) 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) or (c) funding any Approved Leasing Expenses which are anticipated to occur in connection with the re-tenanting of the space under the Lease that was the subject of such termination (in accordance with the terms and conditions of Section 3.5(a) above.
(c) Any amounts constituting a Leasing Advance Funding Shortfall funded by Lender pursuant to Section 2.9.4 hereof shall be transferred by Lender into the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing and provided that each of continuing, the conditions precedent set forth in Section 2.9.3 hereof have been satisfied, Lender shall disburse remaining funds held in the Rollover Reserve Subaccount (to Borrower, the extent not drawn upon pursuant to this Section 25(f)) allocable to any specific portion of the commercial space at the Property which is the subject of the Rollover Sweep Event will be disbursed to Borrower within fifteen (15) 10 days after the delivery by written request therefor, provided that Borrower has delivered (i) evidence reasonably satisfactory to Lender of a request therefor that (but not more often than once per month), y) such commercial space has been re-let pursuant to Leases entered into in increments of at least $5,000 to be used to pay or reimburse Borrower for Approved Leasing Expenses. Any such disbursement of more than $10,000 to pay accordance with this Instrument and (rather than reimbursez) all Approved Leasing Expenses maywhich have been incurred or which Lender anticipates will be incurred with respect to such space have been paid in full and (ii) an estoppel certificate from the applicable tenant occupying such portion of the commercial space at the Property in a form reasonably satisfactory to Lender pursuant to which such tenant certifies to Lender that (1) such tenant has taken occupancy of its demised premises, at Lender’s option, be made by joint check payable (2) all of the conditions precedent to Borrower such tenant's obligation to commence the payment of rent under its Lease have been satisfied (including Borrower's contribution to the cost of any tenant improvement work) and (3) such tenant has commenced the payee on such Approved Leasing Expensespayment of rent under its Lease.
Appears in 1 contract
Samples: Mortgage, Assignment of Leases and Rents and Security Agreement (Acadia Realty Trust)
Rollover Reserves. (a) On the date hereof, Borrower shall pay to Lender an amount equal to (i) $360,958.95 (1,100,000 on the “Hewlett-Packard TI Deposit”) date hereof and (ii) $139,680.00 (the “Apex Systems TI Deposit”). From and after the earlier of (i) April 1, 2008 and (ii) the first (1st) Payment Date following the prepayment of the Tranche B Loan, Borrower shall pay to Lender 9,406 on each Payment Date an amount equal to $24,495. (such monthly payments are collectively referred to herein as, the “Monthly Rollover Funds”)Date. Lender will transfer such amounts, including without limitation, the Hewlett-Packard TI Deposit and the Apex Systems TI Deposit, amount into a Subaccount (the “Rollover Reserve Subaccount”"ROLLOVER RESERVE SUBACCOUNT"). Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received by Borrower. If Lender determines in its reasonable judgment that the funds in the Rollover Reserve Subaccount will be insufficient to pay (or in excess of) the amounts due or to become due for Approved Major Lease Leasing Expenses, Lender may increase (or decrease) the monthly contribution required to be made by Borrower to the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within ten fifteen (1015) 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 Table of Contents Major Lease Leasing ExpenseExpenses; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s 's expense) performance of any construction work associated with such Approved Major Lease Leasing ExpenseExpenses; and (iii) 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 for) Approved Major Lease Leasing Expenses and a description thereof, (2) that all outstanding trade payables (other than those not yet due and payable or 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 Major Lease Leasing Expenses, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor. Any such disbursement of more than $10,000 to pay (rather than reimburse) Approved Major Lease Leasing Expenses may, at Lender’s 's option, be made by joint check payable to Borrower and the payee of such Approved Major Lease Leasing Expenses. Notwithstanding anything to Additionally, on each Payment Date occurring during the contrary contained in this Section 3.5continuance of a Lease Sweep Period, (i) funds constituting the Hewlett-Packard TI Deposit all Available Cash shall be allocated paid to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Hewlett-Packard and (ii) funds constituting the Apex Systems TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Any unused portion of the Hewlett-Packard TI Deposit and/or Apex Systems TI Deposit shall remain in Lender for deposit into the Rollover Reserve Subaccount Subaccount, which funds shall be disbursed for the payment of Approved Major Lease Leasing Expenses and shall be disbursed in accordance with the provisions of terms and conditions set forth in this Section 3.5(a).
(b) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount from the Security Deposit Subaccount in accordance with Section SECTION 3.8 hereof shall be applied, at Lender’s 's election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (b) 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) or (c) funding any Approved Major Lease Leasing Expenses Expenses, if applicable which are anticipated to occur in connection with the re-tenanting of the space under the Lease that was the subject of such termination (in accordance with the terms and conditions of Section 3.5(aSECTION 3.5(A) above.
(c) Any amounts constituting a Leasing Advance Funding Shortfall funded by Lender pursuant to Section 2.9.4 hereof shall be transferred by Lender into the Rollover Reserve Subaccount). Provided that no Default or Event of Default has occurred and is continuing and provided that each continuing, upon the termination of the conditions precedent set forth subject Lease Sweep Period, and Lender's receipt of satisfactory evidence that all Approved Major Lease Leasing Expenses incurred in Section 2.9.3 hereof connection therewith (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), Lender shall disburse any funds held (if any) remaining in the Rollover Reserve Subaccount that have been deposited therein as a result of such Lease Sweep Period shall be disbursed to Borrower; PROVIDED, however, if a Cash Trap Period is then continuing, then no such funds shall be disbursed to Borrower, within fifteen (15) days after and all such funds shall instead be deposited into the delivery by Borrower to Lender of a request therefor (but not more often than once per month)Cash Collateral Subaccount, in increments of at least $5,000 to be used to pay or reimburse Borrower for Approved Leasing Expenses. 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 on such Approved Leasing Expensesapplied in accordance with SECTION 3.9 hereof.
Appears in 1 contract
Rollover Reserves. (a) On the date hereof, Borrower shall pay to Lender an amount equal to (i) $360,958.95 (the “Hewlett-Packard TI Deposit”) and (ii) $139,680.00 (the “Apex Systems TI Deposit”). From and after the earlier of (i) April 1, 2008 and (ii) the first (1st) Payment Date following the prepayment of the Tranche B Loan, Borrower shall pay to Lender 55,101.92 on each Payment Date an amount equal to $24,495. (such monthly payments are collectively referred to herein as, the “Monthly Rollover Funds”)Date. Lender will transfer maintain all amounts so deposited by Borrower hereunder in a Subaccount, which shall bear interest, which interest earned shall become a part of such amounts, including without limitation, the Hewlett-Packard TI Deposit and the Apex Systems TI Deposit, into a Subaccount subaccount (the “Rollover Reserve Subaccount”). Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments payments received from tenants in connection with the early termination or cancellation of any Leases, including fees, penalties and commissions. If Lender determines in its reasonable judgment that the funds in the Rollover Reserve Subaccount will be insufficient to pay (or in excess of) the amounts due or to become due for Approved Leasing Expenses, Lender may increase (or decrease) the monthly contribution required to be made by BorrowerBorrower to the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within ten (10) 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 Table of Contents Leasing Expense; (ii) Lender shall have (if it desires) verified (by an inspection conducted at Borrower’s 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 for) Approved Leasing Expenses and a description thereof, (2) that all outstanding trade payables (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 $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. Notwithstanding anything to the contrary contained in this Section 3.5, (i) funds constituting the Hewlett-Packard TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Hewlett-Packard and (ii) funds constituting the Apex Systems TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Any unused portion of the Hewlett-Packard TI Deposit and/or Apex Systems TI Deposit shall remain in the Rollover Reserve Subaccount for the payment of Approved Leasing Expenses and shall be disbursed in accordance with the provisions of this Section 3.5(a).
(b) Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount from the Security Deposit Subaccount in accordance with Section 3.8 hereof shall be applied, at Lender’s election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (b) 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) or (c) funding any Approved Leasing Expenses which are anticipated to occur in connection with the re-tenanting of the space under the Lease that was the subject of such termination (in accordance with the terms and conditions of Section 3.5(a) above.
(c) Any amounts constituting a Leasing Advance Funding Shortfall funded by Lender pursuant to Section 2.9.4 hereof shall be transferred by Lender into the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing and provided that each of the conditions precedent set forth in Section 2.9.3 hereof have been satisfied, Lender 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 to be used to pay or reimburse Borrower for Approved Leasing Expenses. 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 on such Approved Leasing Expenses.
Appears in 1 contract
Rollover Reserves. (a) On the date hereof, 3.5.1 Borrower shall pay to Lender an amount equal to (i) the sum of $360,958.95 (the “Hewlett-Packard TI Deposit”) and (ii) $139,680.00 (the “Apex Systems TI Deposit”). From and after the earlier of (i) April 1, 2008 and (ii) the first (1st) Payment Date following the prepayment of the Tranche B Loan, Borrower shall pay to Lender 41,862.54 on each Payment Date an amount equal to $24,495. (such monthly payments are collectively referred to herein asfor reimbursement of Borrower’s Approved Leasing Expenses in accordance with this Section, the “Monthly Rollover Funds”). and Lender will transfer such amounts, including without limitation, the Hewlett-Packard TI Deposit and the Apex Systems TI Deposit, amounts into a Subaccount (the “Rollover Reserve Subaccount”). Borrower shall also pay to Lender for transfer into the Rollover Reserve Subaccount all Lease Termination Payments received due to Borrower. If Lender determines in its reasonable judgment that the funds in the Rollover Reserve Subaccount will be insufficient to pay (or in excess of) the amounts due or to become due for Approved Leasing Expenses, Lender may increase (or decrease) the monthly contribution required to be made by BorrowerBorrower to the Rollover Reserve Subaccount. Provided that no Default or Event of Default has occurred and is continuing, Lender shall disburse funds held in the Rollover Reserve Subaccount to Borrower, within ten thirty (1030) 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 $5,00025,000, provided (i) such disbursement disbursements is for an Approved Table of Contents Leasing Expense; (ii) Lender shall have (if it desires) verified (and if the requested disbursement equals $50,000 or more, then 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 (1v) that such funds will with be used only to pay (or reimburse Borrower for) for Approved Leasing Expenses and a description thereof, (2w) that all outstanding trade payables (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) 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) for the previously identified Approved Leasing ExpensesExpenses and (z) that any construction work associated with such Approved Leasing Expenses has been completed in good and workmanlike manner and in accordance with all applicable Legal Requirements and in accordance with approved plans and specifications therefor, and (B) reasonably detailed supporting documentation as to the amount, necessity and purpose therefor, (C) copies of appropriate Lien waivers or other evidence as Lender shall reasonably request that the Approved Leasing Expenses to be reimbursed by the requested disbursement have been completed in accordance with all General Construction Work Requirements and all applicable Legal Requirements and has been fully paid for, 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 reimbursereimburse if permitted by Lender in its sole discretion) for an Approved Leasing Expenses may, at Lender’s option, be made by joint check payable to Borrower and the payee of such Approved Leasing Expenses. Notwithstanding anything to the contrary contained in this Section 3.5, (i) funds constituting the Hewlett-Packard TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Hewlett-Packard and (ii) funds constituting the Apex Systems TI Deposit shall be allocated to pay only those Approved Leasing Expenses with respect to the space at the Property leased to Apex Systems, Inc. Any unused portion of the Hewlett-Packard TI Deposit and/or Apex Systems TI Deposit shall remain in the Rollover Reserve Subaccount for the payment of Approved Leasing Expenses and shall be disbursed in accordance with the provisions of this Section 3.5(a).
(b) 3.5.2 Any Lease Termination Payments and any other funds deposited into the Rollover Reserve Subaccount from the Security Deposit Subaccount in accordance with Section 3.8 hereof 3.9 below shall be applied, at Lender’s election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), or (b) 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) or (c) funding any Approved Leasing Expenses which are anticipated to occur in connection with the re-tenanting of the space under the Lease that was the subject of such termination (in accordance with the terms and conditions of Section 3.5(a) 3.5.1 above).
(c) Any amounts constituting 3.5.3 If a Leasing Advance Funding Shortfall funded Cash Trap Trigger Event is caused solely by an Anchor Tenant Trigger Event, until such time as an Anchor Tenant Trigger Cure Event occurs with respect to the subject Anchor Tenant Trigger Event and no other Anchor Tenant Trigger Event remains in existence, Excess Cash shall be deposited into a separate account established by Lender pursuant to Section 2.9.4 hereof (the “Anchor Tenant Rollover Reserve Account”), which shall not be transferred by Lender into commingled with, or a subaccount of, the Rollover Reserve Subaccount, in accordance with the terms of the Cash Management Agreement, until such time that Excess Cash equal to the applicable Anchor Tenant Rollover Reserve Cap has been deposited into the Anchor Tenant Rollover Reserve Account. Provided The sweeping of Excess Cash into the Anchor Tenant Rollover Reserve Account shall cease once the balance held in the Anchor Tenant Rollover Reserve Account is at least equal to the then applicable Anchor Tenant Rollover Reserve Cap, and, provided no Event of Default and no other Cash Trap Trigger Event has occurred and is continuing, all amounts on deposit in the Anchor Tenant Rollover Reserve Account in excess of the applicable Anchor Tenant Rollover Reserve Cap shall be released to Borrower. Without limiting the foregoing, at such time as an Anchor Tenant Trigger Cure Event occurs with respect to the subject Anchor Tenant Trigger Event and no other Anchor Tenant Trigger Event remains in existence, then all Excess Cash deposited in the Anchor Tenant Rollover Reserve Account as a result of the subject Anchor Tenant Trigger Event, and remaining after any permitted disbursements therefrom, shall be released to Borrower provided that no Default or Event of Default exists and no other Cash Trap Trigger Event has occurred and is continuing and provided that each continuing, provided, however, if another Cash Trap Trigger Event is then existing, any balance of the conditions precedent set forth in Section 2.9.3 hereof have been satisfied, Lender shall disburse funds held in the Anchor Tenant 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), Account and any other Excess Cash shall be deposited and disbursed in increments of at least $5,000 to be used to pay or reimburse Borrower for Approved Leasing Expenses. 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 on such Approved Leasing Expenses.accordance with Section 3.10
Appears in 1 contract
