Tenant Improvements and Leasing Commissions. (a) Borrower hereby agrees to use commercially reasonable efforts to (i) perform, or cause to be performed, tenant improvements required under any Lease entered into in accordance with the provisions of Section 5.13 of this Agreement (collectively, the “Tenant Improvements”), and (ii) pay the costs of leasing commissions incurred by Borrower in connection with the leasing of any Individual Property or a portion thereof and which are approved by Lender, to the extent required by this Agreement (collectively, “Leasing Commissions”). (b) Upon the first to occur of (i) the payment to Borrower of any sum or termination fee in connection with any Tenant’s election to exercise any early termination option contained in its respective Lease of space at any Individual Property or in connection with any other termination, amendment or modification of any Lease, reduction of Rents, shortening of the term or surrender of space thereunder (the “Termination Fee Deposit”) or (ii) the occurrence of a Debt Yield Sweep Period, Borrower shall establish an Eligible Account with Lender or Lender’s agent to fund the Tenant Improvements and Leasing Commissions. On each Payment Date during the continuance of a Debt Yield Sweep Period, Borrower shall deposit (A) one‑twelfth of $0.50 per annum per square foot of industrial space at the Properties and (B) one‑twelfth $1.00 per annum per square foot of office space (the “Leasing Reserve DY Sweep Monthly Deposit”) until such time that the amounts on deposit in the Leasing Reserve Account equals or exceeds two (2) years’ worth of such deposits (the “Leasing Reserve DY Sweep Cap”); provided, however, if at any time during the term of the Loan (y) the amount on deposit in the Leasing Reserve Account is less than the Leasing Reserve Cap or (z) an Event of Default exists, Borrower shall resume making the Leasing Reserve DY Monthly Deposit on each Payment Date thereafter until the amounts on deposit in the Leasing Reserve Account attributable to the Leasing Reserve DY Sweep Monthly Deposit equals or exceeds the Leasing Reserve Cap or the Event of Default has been cured or waived by Lender, provided no other Event of Default has occurred and is continuing. In addition, Borrower shall deposit with Lender into the Leasing Reserve Account the Termination Fee Deposit on the date of Borrower’s receipt thereof. (c) Unless a Leasing Reserve Account has already been established and remains open pursuant to clause (b) above, Borrower shall establish the Leasing Reserve Account prior to the Midterm Monthly Deposit Trigger Date. Beginning on the Midterm Monthly Deposit Trigger Date and continuing on each Payment Date thereafter, without regard to whether Borrower is then required to be depositing the Leasing Reserve DY Sweep Monthly Deposit, Borrower shall deposit (i) one‑twelfth of $0.50 per annum per square foot of industrial space at the Properties and (ii) one‑twelfth $1.00 per annum per square foot of office space (the “Leasing Reserve Midterm Sweep Monthly Deposit”, and, together with the Leasing Reserve DY Sweep Monthly Deposit, collectively the “Leasing Reserve Monthly Deposit”) until such time that the amounts on deposit in the Leasing Reserve Account equals or exceeds one (1) years’ worth of such deposits (the “Leasing Reserve Midterm Sweep Cap”); provided, however, if at any time during the term of the Loan (y) the amount on deposit in the Leasing Reserve Account is less than the Leasing Reserve Midterm Sweep Cap or (z) an Event of Default exists, Borrower shall resume making the Leasing Reserve Midterm Monthly Deposit on each Payment Date thereafter until the amounts on deposit in the Leasing Reserve Account equals or exceeds the Leasing Reserve Midterm Sweep Cap or the Event of Default has been cured or waived by Lender, provided no other Event of Default has occurred and is continuing. Amounts on deposit in the Leasing Reserve Account shall hereinafter be referred to as the “Leasing Reserve Funds.” (d) For the avoidance of doubt, the funds held in the Leasing Reserve Account shall be attributable towards each of the Leasing Reserve DY Sweep Cap and Leasing Reserve Midterm Sweep Cap, and such amounts are not exclusive of each other. All sums on deposit in the Leasing Reserve Account shall be disbursed to Borrower upon the payment in full of the Debt in accordance with the terms of this Agreement and the other Loan Documents, provided no Event of Default is then continuing.
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Samples: Loan Agreement (Griffin Capital Essential Asset REIT II, Inc.), Loan Agreement (Griffin Capital Essential Asset REIT, Inc.)
Tenant Improvements and Leasing Commissions. (a) Borrower hereby agrees to use commercially reasonable efforts to (ia) perform, or cause to be performed, tenant improvements required under any Lease entered into in accordance with the provisions of Section 5.13 of this Agreement (collectively, the “Tenant Improvements”"TENANT IMPROVEMENTS"), and (iib) pay the costs of leasing commissions incurred by Borrower in connection with the leasing of any Individual the Property or a portion thereof and which are approved by Lender, to the extent required by this Agreement (collectively, “Leasing Commissions”"LEASING COMMISSIONS").
(b) Upon the first to occur of (i) the payment to Borrower of any sum or termination fee in connection with any Tenant’s election to exercise any early termination option contained in its respective Lease of space at any Individual Property or in connection with any other termination, amendment or modification of any Lease, reduction of Rents, shortening of the term or surrender of space thereunder (the “Termination Fee Deposit”) or (ii) the occurrence of a Debt Yield Sweep Period, Borrower shall establish on the date hereof an Eligible Account with Lender or Lender’s agent to fund the Tenant Improvements and Leasing Commissions. On each Payment Date during the continuance of a Debt Yield Sweep Period, Borrower shall deposit (Abe funded in accordance with Section 9.3(c) one‑twelfth of $0.50 per annum per square foot of industrial space at the Properties and (B) one‑twelfth $1.00 per annum per square foot of office space (the “Leasing Reserve DY Sweep Monthly Deposit”"LEASING RESERVE ACCOUNT") until such time that into which no deposit shall be required on the Closing Date. All amounts on deposit deposited in the Leasing Reserve Account equals or exceeds two (2) years’ worth of such deposits (the “Leasing Reserve DY Sweep Cap”); providedAccount, however, if at any time during the term of the Loan (y) the amount on deposit in the Leasing Reserve Account is less than the Leasing Reserve Cap or (z) an Event of Default exists, Borrower shall resume making the Leasing Reserve DY Monthly Deposit on each Payment Date thereafter until the amounts on deposit in the Leasing Reserve Account attributable to the Leasing Reserve DY Sweep Monthly Deposit equals or exceeds the Leasing Reserve Cap or the Event of Default has been cured or waived by Lender, provided no other Event of Default has occurred and is continuing. In addition, Borrower shall deposit with Lender into the Leasing Reserve Account the Termination Fee Deposit on the date of Borrower’s receipt thereof.
(c) Unless a Leasing Reserve Account has already been established and remains open pursuant to clause (b) above, Borrower shall establish the Leasing Reserve Account prior to the Midterm Monthly Deposit Trigger Date. Beginning on the Midterm Monthly Deposit Trigger Date and continuing on each Payment Date thereafterincluding, without regard to whether Borrower is then required to be depositing limitation, the Leasing Reserve DY Sweep Monthly DepositAnchor Tenant Funds, Borrower shall deposit (i) one‑twelfth of $0.50 per annum per square foot of industrial space at the Properties and (ii) one‑twelfth $1.00 per annum per square foot of office space (the “Leasing Reserve Midterm Sweep Monthly Deposit”, and, together with the Leasing Reserve DY Sweep Monthly Deposit, collectively the “Leasing Reserve Monthly Deposit”) until such time that the amounts on deposit in the Leasing Reserve Account equals or exceeds one (1) years’ worth of such deposits (the “Leasing Reserve Midterm Sweep Cap”); provided, however, if at any time during the term of the Loan (y) the amount on deposit in the Leasing Reserve Account is less than the Leasing Reserve Midterm Sweep Cap or (z) an Event of Default exists, Borrower shall resume making the Leasing Reserve Midterm Monthly Deposit on each Payment Date thereafter until the amounts on deposit in the Leasing Reserve Account equals or exceeds the Leasing Reserve Midterm Sweep Cap or the Event of Default has been cured or waived by Lender, provided no other Event of Default has occurred and is continuing. Amounts on deposit in the Leasing Reserve Account shall hereinafter be referred to as the “Leasing Reserve Funds"LEASING RESERVE FUNDS.”"
(dc) For Following an Anchor Tenant Event, prior to Lender making any funds available from the avoidance of doubtLockbox Account, the funds held in Borrower shall deposit into the Leasing Reserve Account on each Scheduled Payment Date a monthly amount equal to $1.50 multiplied by the square footage of the Vacated Anchor Space (such amounts shall, with respect to each such Vacated Anchor Space, be referred to as the "INDIVIDUAL ANCHOR TENANT FUNDS" and collectively be referred to as the "ANCHOR TENANT FUNDS"). Notwithstanding the immediately preceding sentence, upon the earlier to occur of (i) Borrower having deposited an amount equal to the Maximum Anchor Tenant Deposit for each Anchor Tenant that has vacated its space at the Property (each such space, a "VACATED ANCHOR SPACE") or (ii) delivery to Lender of evidence reasonably satisfactory to Lender that Borrower has leased all of the applicable Vacated Anchor Space pursuant to the terms hereof, including, without limitation, Section 5.13 hereof, then no further deposits attributable to such Vacated Anchor Space shall be attributable towards each of the Leasing Reserve DY Sweep Cap and Leasing Reserve Midterm Sweep Cap, and such amounts are not exclusive of each other. All sums on deposit in the Leasing Reserve Account shall be disbursed required pursuant to Borrower upon the payment in full of the Debt in accordance with the terms of this Agreement and the other Loan Documents, provided no Event of Default is then continuingSection 9.3(c).
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Tenant Improvements and Leasing Commissions. (a) Borrower hereby agrees to use commercially reasonable efforts to (i) perform, or cause to be performed, tenant improvements required under any Lease entered into in accordance with the provisions of Section 5.13 of this Agreement (collectively, the “Tenant Improvements”), a. Except as hereinafter provided and (ii) pay the costs of leasing commissions incurred by Borrower in connection with the leasing of any Individual Property or a portion thereof and which are approved by Lender, to the extent required by this Agreement (collectively, “Leasing Commissions”).
(b) Upon the first to occur of (i) the payment to Borrower of any sum or termination fee in connection with any Tenant’s election to exercise any early termination option contained in its respective Lease of space at any Individual Property or in connection with any other termination, amendment or modification of any Lease, reduction of Rents, shortening of the term or surrender of space thereunder (the “Termination Fee Deposit”) or (ii) the occurrence of a Debt Yield Sweep Period, Borrower shall establish an Eligible Account with Lender or Lender’s agent to fund the Tenant Improvements and Leasing Commissions. On each Payment Date during the continuance of a Debt Yield Sweep Period, Borrower shall deposit (A) one‑twelfth of $0.50 per annum per square foot of industrial space at the Properties and (B) one‑twelfth $1.00 per annum per square foot of office space (the “Leasing Reserve DY Sweep Monthly Deposit”) until such time that the amounts on deposit in the Leasing Reserve Account equals or exceeds two (2) years’ worth of such deposits (the “Leasing Reserve DY Sweep Cap”); provided, however, if at any time during the term of the Loan (y) the amount on deposit in the Leasing Reserve Account is less than the Leasing Reserve Cap or (z) an Event of Default exists, Borrower shall resume making the Leasing Reserve DY Monthly Deposit on each Payment Date thereafter until the amounts on deposit in the Leasing Reserve Account attributable to the Leasing Reserve DY Sweep Monthly Deposit equals or exceeds the Leasing Reserve Cap or the Event of Default has been cured or waived by Lender, provided so long as no other Event of Default has occurred and is continuing. In additioncontinuing under the Loan Documents, Borrower Lender shall deposit allow Escrow Release(s) in the amounts hereinafter specified in accordance with Lender into the Leasing Reserve Account the Termination Fee Deposit on the date of Borrower’s receipt thereof.following terms and conditions:
(c) Unless a Leasing Reserve Account has already been established and remains open pursuant to clause (b) above, Borrower shall establish the Leasing Reserve Account prior to the Midterm Monthly Deposit Trigger Date. Beginning on the Midterm Monthly Deposit Trigger Date and continuing on each Payment Date thereafter, without regard to whether Borrower is then required to be depositing the Leasing Reserve DY Sweep Monthly Deposit, Borrower shall deposit (i) one‑twelfth of $0.50 per annum per square foot of industrial space at Escrow Release(s) for Tenant Improvements and Leasing Commissions shall be for an amount equal to the Properties and (ii) one‑twelfth $1.00 per annum per square foot of office space (the “Leasing Reserve Midterm Sweep Monthly Deposit”, and, together with the Leasing Reserve DY Sweep Monthly Deposit, collectively the “Leasing Reserve Monthly Deposit”) until such time that the amounts on deposit in the Leasing Reserve Account equals or exceeds one (1) years’ worth of such deposits (the “Leasing Reserve Midterm Sweep Cap”)Combined Rate; provided, however, if at any time during the term of the Loan (y) the amount on deposit that in the Leasing Reserve Account event that the lease term is less than five (5) years, the Combined Rate shall be prorated (example, a three year lease = 3/5 times the Combined Rate);
(ii) Borrower shall submit written Escrow Release(s) requests to Lender for Tenant Improvements and Leasing Reserve Midterm Sweep Cap Commissions no more than once per calendar month and each such request shall be for an aggregate amount of not less than $50,000 (excluding the final disbursement); and
(iii) Escrow Release(s) shall be conditioned upon Borrower furnishing to Lender with its written request, at Lender's discretion, the Standard Disbursement Requirements and the following:
(A) fully executed lease(s) or fully executed amendments extending upcoming term expirations of previously approved existing Lease(s) (zwhich existing Lease(s) must not be in default beyond any applicable notice and cure period at the time of the Escrow Release request), as the case may be, all in form and substance acceptable to Lender (not to be unreasonably withheld, conditioned or delayed) to creditworthy lessees (other than Borrower or any Person(s) affiliated with Borrower) and with minimum lease terms of three (3) years; Notwithstanding anything herein to the contrary, in the event a new lease or amendment to an Event existing Lease requires Borrower's payment of Default existstenant improvement and leasing commissions, Borrower shall resume making advise Lender whether Borrower desires to make a request for an Escrow Release for Tenant Improvements and Leasing Commissions. Borrower is hereby advised that Lender's approval of any such new lease or amendment may take into consideration the economic feasibility of a release of such funds in relation to the value of the lease, creditworthiness of the lessee and/or acceptability of the lease terms and Lender's approval of such new lease or amendment to an existing Lease may be conditioned on Borrower's agreement to a partial Escrow Release or no Escrow Release for said new lease or Lease amendment. In the event that a partial Escrow Release or no Escrow Release applies to a particular tenant space, any funds allocated to Tenant Improvements and Leasing Reserve Midterm Monthly Deposit on each Payment Date thereafter until Commissions for said tenant space may be available for an Escrow Release for other tenant space (or future rollover of said tenant space) upon Borrower's written request and compliance with the amounts on deposit terms and conditions of this Schedule IV.
(B) with respect to any Escrow Release request relating to final and completed Tenant Improvements for a lessee's space, lessee's estoppel certificate(s) for the improved space in form and substance reasonably acceptable to Lender indicating, among other things, the lessee's occupancy and unconditional acceptance of the improvements and the commencement of consecutive monthly rental payments, all rental concessions and deferments having expired;
(C) with respect to any Escrow Release request relating to final and completed Tenant Improvements for a lessee's space, a final, unconditional certificate of occupancy (or equivalent occupancy approval) for the improved space from the local authority responsible for issuing such certificate (unless not required to be issued by said local authority); and
(D) with respect to any Escrow Release request relating to payment of Leasing Reserve Account equals Commissions, Borrower having furnished to Lender an estoppel or exceeds the Leasing Reserve Midterm Sweep Cap or the Event of Default has been cured or waived by letter, in form and substance reasonably acceptable to Lender, provided no other Event of Default has occurred and is continuing. Amounts on deposit in from the Leasing Reserve Account shall hereinafter be referred to as the “Leasing Reserve Funds.”
(d) For the avoidance of doubt, the funds held in the Leasing Reserve Account shall be attributable towards each of the Leasing Reserve DY Sweep Cap and Leasing Reserve Midterm Sweep Cap, and such amounts are not exclusive of each other. All sums on deposit in the Leasing Reserve Account shall be disbursed to Borrower upon the applicable broker or agent evidencing payment in full of the Debt commission, or, in accordance with the terms of this Agreement and the Lender's discretion, such other Loan Documents, provided no Event of Default is then continuingdocumentation acceptable to Lender.
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Tenant Improvements and Leasing Commissions. (a) Borrower hereby agrees to use commercially reasonable efforts to (i) perform, or cause to be performed, tenant improvements required under any Lease entered into in accordance with the provisions of Section 5.13 of this Agreement (collectively, the “Tenant Improvements”), a. Except as hereinafter provided and (ii) pay the costs of leasing commissions incurred by Borrower in connection with the leasing of any Individual Property or a portion thereof and which are approved by Lender, to the extent required by this Agreement (collectively, “Leasing Commissions”).
(b) Upon the first to occur of (i) the payment to Borrower of any sum or termination fee in connection with any Tenant’s election to exercise any early termination option contained in its respective Lease of space at any Individual Property or in connection with any other termination, amendment or modification of any Lease, reduction of Rents, shortening of the term or surrender of space thereunder (the “Termination Fee Deposit”) or (ii) the occurrence of a Debt Yield Sweep Period, Borrower shall establish an Eligible Account with Lender or Lender’s agent to fund the Tenant Improvements and Leasing Commissions. On each Payment Date during the continuance of a Debt Yield Sweep Period, Borrower shall deposit (A) one‑twelfth of $0.50 per annum per square foot of industrial space at the Properties and (B) one‑twelfth $1.00 per annum per square foot of office space (the “Leasing Reserve DY Sweep Monthly Deposit”) until such time that the amounts on deposit in the Leasing Reserve Account equals or exceeds two (2) years’ worth of such deposits (the “Leasing Reserve DY Sweep Cap”); provided, however, if at any time during the term of the Loan (y) the amount on deposit in the Leasing Reserve Account is less than the Leasing Reserve Cap or (z) an Event of Default exists, Borrower shall resume making the Leasing Reserve DY Monthly Deposit on each Payment Date thereafter until the amounts on deposit in the Leasing Reserve Account attributable to the Leasing Reserve DY Sweep Monthly Deposit equals or exceeds the Leasing Reserve Cap or the Event of Default has been cured or waived by Lender, provided so long as no other Event of Default has occurred under the Loan Documents, Lender shall from time to time disburse the funds constituting TI/LC Reserves in the amounts hereinafter specified in accordance with the following terms and is continuing. In addition, Borrower shall deposit with Lender into the Leasing Reserve Account the Termination Fee Deposit on the date of Borrower’s receipt thereof.conditions:
(c) Unless a Leasing Reserve Account has already been established and remains open pursuant to clause (b) above, Borrower shall establish the Leasing Reserve Account prior to the Midterm Monthly Deposit Trigger Date. Beginning on the Midterm Monthly Deposit Trigger Date and continuing on each Payment Date thereafter, without regard to whether Borrower is then required to be depositing the Leasing Reserve DY Sweep Monthly Deposit, Borrower shall deposit (i) one‑twelfth Disbursements for Tenant Improvements and Leasing Commissions shall be for an amount equal to the actual costs and expenses incurred by Borrower, not to exceed a combined rate of $0.50 per annum 18.00 per square foot of industrial net rentable area leased;
(ii) Borrower shall submit written requests to Lender to disburse funds for Tenant Improvements and Leasing Commissions no more than once per calendar quarter and each such request shall be for an aggregate amount of not less than $50,000;
(iii) Disbursements shall be conditioned upon Borrower furnishing to Lender with its written request, at Lender's discretion:
(A) copies of unconditional lien waivers for completed Tenant Improvements;
(B) a title search in form and substance acceptable to Lender and if such search discloses conditions unacceptable to Lender or Lender deems it reasonably necessary, then such endorsements or other assurances reasonably satisfactory to Lender from the title insurance company insuring the continued first lien priority of the Mortgage, without exception for mechanics' or materialmen's liens and subject only to those exceptions previously approved by Lender and any other exceptions approved in writing by Lender subsequent to the date hereof;
(C) evidence that Borrower has completed and performed the Tenant Improvements and has paid for and obtained all permits, bonds, licenses and approvals required by all applicable laws for the same, whether necessary for commencement, performance, completion, occupancy, use or otherwise;
(D) to the extent Lender deems reasonably necessary, either of the following at Lender's discretion: (i) a statement from an architect, contractor or engineering consultant, in Lender's reasonable discretion, as to the extent and cost of the Tenant Improvements; or (ii) a copy of the construction contract and any change orders and addenda thereto;
(E) fully executed lease(s) or fully executed amendments extending upcoming term expirations of previously approved existing leases, as the case may be, all in form and substance acceptable to Lender to creditworthy lessees (other than Borrower or any person or entity affiliated with Borrower);
(F) lessee's estoppel certificate(s) for the improved space at in form and substance acceptable to Lender indicating, among other things, the Properties lessee's occupancy and unconditional acceptance of the improvements and the commencement of consecutive monthly rental payments, all rental concessions and deferments having expired;
(G) a certificate of occupancy in a form and substance satisfactory to Lender for the improved space from the local authority responsible for issuing such certificate;
(H) Lender having inspected, or having expressly waived in writing such inspection, and approved the completed Tenant Improvements which must have been completed in a good and workmanlike manner; and
(I) Borrower having furnished to Lender in form and substance reasonably acceptable to Lender: (i) a true, correct and complete copy of the agreement, with the applicable broker or agent to which a commission is due; and (ii) one‑twelfth $1.00 per annum per square foot of office space (the “Leasing Reserve Midterm Sweep Monthly Deposit”, and, together with the Leasing Reserve DY Sweep Monthly Deposit, collectively the “Leasing Reserve Monthly Deposit”) until such time that the amounts on deposit in the Leasing Reserve Account equals or exceeds one (1) years’ worth of such deposits (the “Leasing Reserve Midterm Sweep Cap”); provided, however, if at any time during the term of the Loan following, at Lender's discretion, (ya) an estoppel certificate from the amount on deposit in the Leasing Reserve Account is less than the Leasing Reserve Midterm Sweep Cap applicable broker or agent, or (zb) an Event such other written documentation either of Default exists, Borrower which shall resume making the Leasing Reserve Midterm Monthly Deposit on each Payment Date thereafter until the amounts on deposit in the Leasing Reserve Account equals or exceeds the Leasing Reserve Midterm Sweep Cap or the Event of Default has been cured or waived by Lender, provided no other Event of Default has occurred and is continuing. Amounts on deposit in the Leasing Reserve Account shall hereinafter be referred to as the “Leasing Reserve Funds.”
(d) For the avoidance of doubt, the funds held in the Leasing Reserve Account shall be attributable towards each of the Leasing Reserve DY Sweep Cap and Leasing Reserve Midterm Sweep Cap, and such amounts are not exclusive of each other. All sums on deposit in the Leasing Reserve Account shall be disbursed to Borrower upon the evidence payment in full of the Debt in accordance with the terms of this Agreement and the other Loan Documents, provided no Event of Default is then continuingcommission.
Appears in 1 contract
Samples: Property Reserves Agreement (Inland Western Retail Real Estate Trust Inc)
Tenant Improvements and Leasing Commissions. (a) Borrower hereby agrees to use commercially reasonable efforts to (i) perform, or cause to be performed, tenant improvements required under any Lease entered into in accordance with the provisions of Section 5.13 of this Agreement (collectively, the “Tenant Improvements”), a. Except as hereinafter provided and (ii) pay the costs of leasing commissions incurred by Borrower in connection with the leasing of any Individual Property or a portion thereof and which are approved by Lender, to the extent required by this Agreement (collectively, “Leasing Commissions”).
(b) Upon the first to occur of (i) the payment to Borrower of any sum or termination fee in connection with any Tenant’s election to exercise any early termination option contained in its respective Lease of space at any Individual Property or in connection with any other termination, amendment or modification of any Lease, reduction of Rents, shortening of the term or surrender of space thereunder (the “Termination Fee Deposit”) or (ii) the occurrence of a Debt Yield Sweep Period, Borrower shall establish an Eligible Account with Lender or Lender’s agent to fund the Tenant Improvements and Leasing Commissions. On each Payment Date during the continuance of a Debt Yield Sweep Period, Borrower shall deposit (A) one‑twelfth of $0.50 per annum per square foot of industrial space at the Properties and (B) one‑twelfth $1.00 per annum per square foot of office space (the “Leasing Reserve DY Sweep Monthly Deposit”) until such time that the amounts on deposit in the Leasing Reserve Account equals or exceeds two (2) years’ worth of such deposits (the “Leasing Reserve DY Sweep Cap”); provided, however, if at any time during the term of the Loan (y) the amount on deposit in the Leasing Reserve Account is less than the Leasing Reserve Cap or (z) an Event of Default exists, Borrower shall resume making the Leasing Reserve DY Monthly Deposit on each Payment Date thereafter until the amounts on deposit in the Leasing Reserve Account attributable to the Leasing Reserve DY Sweep Monthly Deposit equals or exceeds the Leasing Reserve Cap or the Event of Default has been cured or waived by Lender, provided so long as no other Event of Default has occurred and is continuing. In additioncontinuing under the Loan Documents, Lender shall allow Escrow Release(s) in the amounts hereinafter specified in accordance with the following terms and conditions:
(i) Escrow Release(s) for Tenant Improvements and Leasing Commissions for the Super Micro Space and/or the AR Space shall be for an amount equal to the actual costs and expenses incurred by Borrower for the Tenant Improvements and Leasing Commissions; Notwithstanding the above, if Borrower (i) does not incur costs and expenses for Tenant Improvements and Leasing Commissions, or (ii) only incurs costs in an amount less than the amounts held in the applicable Property Reserves (it being agreed that if Super Micro and/or AR enter into an approved lease for less than the entire Super Micro Space or the entire AR Space (assuming no Tenant Improvements or Leasing Commissions are due with respect thereto), the Super Micro Escrow and the AR Escrow, as applicable, shall deposit be reduced accordingly by a percentage equal to the applicable percentage of the Super Micro Space and the AR Space so leased by Super Micro or AR, as applicable, and in which case either (i) the entire applicable Property Reserves amount, or (ii) percentage amount so reduced, respectively, shall be disbursed to Borrower, provided that at the time of the Escrow Release Request (I) the then existing annual net cash flow based on Borrower’s financial statements (annual net operating income after deduction for tenant improvements, leasing commissions, annual replacement reserves, and a management fee) from existing Lease(s) with Lender into no uncured defaults and at least 2 years remaining on their terms is at least 1.10 times the Leasing Reserve Account the Termination Fee Deposit annual debt service on the date Note as determined by Lender assuming an annual loan constant of Borrower’s receipt thereof9.00%; and (II) the remainder of the conditions of this paragraph 5 are satisfied.
(cii) Unless a Leasing Reserve Account has already been established and remains open pursuant to clause (b) above, Borrower shall establish submit written Escrow Release(s) requests to Lender for Tenant Improvements and Leasing Commissions for the Super Micro Space and/or the AR Space no more than once per calendar month and each such request shall be for an aggregate amount of not less than $50,000.00 (excluding the final disbursement). The funds allocated to Tenant Improvements and Leasing Reserve Account prior Commissions shall be used to pay on a construction basis to Borrower solely for re-leasing the Midterm Monthly Deposit Trigger Date. Beginning on Super Micro Space and the Midterm Monthly Deposit Trigger Date Xxxx Xxxxxxx Space; and
(iii) Escrow Release(s) shall be conditioned upon Borrower furnishing to Lender with its written request, at Lender’s discretion, the Standard Disbursement Requirements and continuing on each Payment Date thereafter, without regard to whether Borrower is then required to the following:
(A) fully executed lease(s) or fully executed amendments extending upcoming term expirations of previously approved existing Lease(s) (which existing Lease(s) must not be depositing the Leasing Reserve DY Sweep Monthly Deposit, Borrower shall deposit (i) one‑twelfth of $0.50 per annum per square foot of industrial space in monetary default beyond any applicable notice and cure period at the Properties and (ii) one‑twelfth $1.00 per annum per square foot time of office space (the “Leasing Reserve Midterm Sweep Monthly Deposit”, and, together with the Leasing Reserve DY Sweep Monthly Deposit, collectively the “Leasing Reserve Monthly Deposit”) until such time that the amounts on deposit in the Leasing Reserve Account equals Escrow Release request or exceeds one (1) years’ worth of such deposits (the “Leasing Reserve Midterm Sweep Cap”); provided, however, if at any time during the term previous 12 months of the Loan lease term), as the case may be, all in form and substance acceptable to Lender (ynot to be arbitrarily or capriciously withheld) to creditworthy lessees (other than Borrower or any Person(s) affiliated with Borrower) and with minimum lease terms of two (2) years and annual rent at the amount on deposit then market rate as reasonably determined by Lender, or as otherwise agreed to by Lender; Notwithstanding anything herein to the contrary, in the Leasing Reserve Account is less than the Leasing Reserve Midterm Sweep Cap event a new lease or (z) amendment to an Event existing Lease requires Borrower’s payment of Default existstenant improvement and leasing commissions, Borrower shall resume making advise Lender whether Borrower desires to make a request for a release from the TI/LC Reserve. Borrower is hereby advised that Lender’s approval of any such new lease or amendment may take into consideration the economic feasibility of a release of such funds in relation to the value of the lease, creditworthiness of the lessee and/or acceptability of the lease terms and Lender’s approval of such new lease or amendment to an existing Lease may be conditioned on Borrower’s agreement to a partial Escrow Release or no Escrow Release for said new lease or Lease amendment.
(B) with respect to any Escrow Release request relating to final and completed Tenant Improvements for a lessee’s space, lessee’s estoppel certificate(s) for the improved space in form and substance reasonably acceptable to Lender indicating, among other things, the lessee’s occupancy and unconditional acceptance of the improvements and the commencement of consecutive monthly rental payments, all rental concessions and deferments having expired;
(C) with respect to any Escrow Release request relating to final and completed Tenant Improvements for a lessee’s space, a final, unconditional certificate of occupancy for the improved space from the local authority responsible for issuing such certificate (unless not required to be issued by said local authority); and
(D) with respect to any Escrow Release request relating to payment of Leasing Reserve Midterm Monthly Deposit on each Payment Date thereafter until the amounts on deposit Commissions, Borrower having furnished to Lender an estoppel or letter, in the Leasing Reserve Account equals or exceeds the Leasing Reserve Midterm Sweep Cap or the Event of Default has been cured or waived by form and substance reasonably acceptable to Lender, provided from the applicable broker or agent evidencing payment in full of the commission, or, in Lender’s discretion, such other documentation acceptable to Lender. Upon such time as the Tenant Improvements and Leasing Commissions for the Super Micro Space and/or the AR Space have been paid in full, upon written request by Borrower and so long as no other Event of Default has occurred and is continuing. Amounts on deposit continuing under the Loan, Lender will allow an Escrow Release to Borrower of any excess funds remaining in the Leasing Reserve Account shall hereinafter be referred to Super Micro Escrow or the AR Escrow, as the “Leasing Reserve Funds.”
(d) For the avoidance of doubt, the funds held in the Leasing Reserve Account applicable. Such Escrow Release shall be attributable towards each of the Leasing Reserve DY Sweep Cap and Leasing Reserve Midterm Sweep Cap, and such amounts are not exclusive of each other. All sums on deposit in the Leasing Reserve Account shall be disbursed promptly made to Borrower upon the payment in full of the Debt in accordance with the terms of this Agreement and the other Loan Documents, provided no Event of Default is then continuingBorrower.
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Tenant Improvements and Leasing Commissions. (a) Borrower hereby agrees to use commercially reasonable efforts to (ia) perform, or cause to be performed, tenant improvements required under any Lease entered into in accordance with the provisions of Section 5.13 of this Agreement (collectively, the “Tenant Improvements”), and (iib) pay the costs of leasing commissions incurred by Borrower in connection with the leasing of any Individual the Property or a portion thereof and which are approved by Lender, to the extent required by this Agreement (collectively, “Leasing Commissions”).
(b) Upon Borrower shall establish on the first date hereof a sub-account of the Cash Management Account with Lender or Lender’s agent to occur fund Tenant Improvements and Leasing Commissions (the “Leasing Reserve Account”) into which Borrower shall deposit on the date hereof $0.00. The Borrower shall also establish a sub-account of the Leasing Reserve Account for the AFL Property (the “AFL Leasing Reserve Account”) and a sub-account for the Little Arch Property (the “Little Arch Leasing Reserve Account”). In addition, Borrower shall deposit with Lender (i) into the payment AFL Leasing Reserve Account any sums required to Borrower be deposited pursuant to the terms of Sections 10.2(c) and 10.3(c), (ii) into the AFL Leasing Reserve Account or Little Arch Leasing Reserve Account, as appropriate, any sum or termination fee payable to Borrower in connection with any Tenant’s election to exercise any early termination option contained in its respective Lease lease of space at any Individual the Property or in connection with any other termination, amendment or modification of any Lease, reduction of Rents, shortening of the term or surrender of space thereunder (the “Termination Fee Deposit”) or (ii) the occurrence of a Debt Yield Sweep Period, Borrower shall establish an Eligible Account with Lender or Lender’s agent to fund the Tenant Improvements and Leasing Commissions. On each Payment Date during the continuance of a Debt Yield Sweep Period, Borrower shall deposit (A) one‑twelfth of $0.50 per annum per square foot of industrial space at the Properties and (B) one‑twelfth $1.00 per annum per square foot of office space (the “Leasing Reserve DY Sweep Monthly Deposit”) until such time that the amounts on deposit in the Leasing Reserve Account equals or exceeds two (2) years’ worth of such deposits (the “Leasing Reserve DY Sweep Cap”); provided, however, if at any time during the term of the Loan (y) the amount on deposit in the Leasing Reserve Account is less than the Leasing Reserve Cap or (z) an Event of Default exists, Borrower shall resume making the Leasing Reserve DY Monthly Deposit on each Payment Date thereafter until the amounts on deposit in the Leasing Reserve Account attributable to the Leasing Reserve DY Sweep Monthly Deposit equals or exceeds the Leasing Reserve Cap or the Event of Default has been cured or waived by Lender, provided no other Event of Default has occurred and is continuing. In addition, Borrower shall deposit with Lender into the Leasing Reserve Account the Termination Fee Deposit on the date of Borrower’s receipt thereof.
thereof and (ciii) Unless a into the Little Arch Leasing Reserve Account has already been established and remains open pursuant to clause (b) above, Borrower shall establish any amounts received from the Tenant Letter of Credit. Amounts so deposited into the Leasing Reserve Account prior or any sub-account and all other funds deposited therein pursuant to the Midterm Monthly Deposit Trigger Date. Beginning on the Midterm Monthly Deposit Trigger Date and continuing on each Payment Date thereafter, without regard to whether Borrower is then required to be depositing the Leasing Reserve DY Sweep Monthly Deposit, Borrower shall deposit (i) one‑twelfth of $0.50 per annum per square foot of industrial space at the Properties and (ii) one‑twelfth $1.00 per annum per square foot of office space (the “Leasing Reserve Midterm Sweep Monthly Deposit”, and, together with the Leasing Reserve DY Sweep Monthly Deposit, collectively the “Leasing Reserve Monthly Deposit”) until such time that the amounts on deposit in the Leasing Reserve Account equals or exceeds one (1) years’ worth of such deposits (the “Leasing Reserve Midterm Sweep Cap”); provided, however, if at any time during the term of the Loan (y) the amount on deposit in the Leasing Reserve Account is less than the Leasing Reserve Midterm Sweep Cap or (z) an Event of Default exists, Borrower shall resume making the Leasing Reserve Midterm Monthly Deposit on each Payment Date thereafter until the amounts on deposit in the Leasing Reserve Account equals or exceeds the Leasing Reserve Midterm Sweep Cap or the Event of Default has been cured or waived by Lender, provided no other Event of Default has occurred and is continuing. Amounts on deposit in the Leasing Reserve Account Article 10 shall hereinafter be referred to as the “Leasing Reserve Funds.”
(dc) For the avoidance of doubt, the funds held in the The AFL Leasing Reserve Account shall be attributable towards each an interest-bearing escrow deposit account for the reimbursement of approved market rate leasing commissions and tenant improvement costs for the Leasing Reserve DY Sweep Cap and Leasing Reserve Midterm Sweep CapAFL Space at the Property. Provided that no Event of Default exists, and such amounts are not exclusive of each other. All sums on deposit in the AFL Leasing Reserve Account shall be disbursed released to Borrower not more than once per month for the reimbursement of approved market rate tenant improvement and leasing commission expenses incurred by Borrower in connection with the AFL Space at the Property leased by Borrower to an AFL Acceptable Replacement Tenant (defined below) upon delivery by Borrower to Lender of evidence, satisfactory to Lender, that the AFL Space at the Property has been partially or fully leased by a tenant or tenants acceptable to Lender in its sole reasonable discretion (which shall include an acceptable renewal of the current AFL Tenant) under a fully executed lease containing terms and conditions that are acceptable to Lender, in its sole reasonable discretion, with market lease terms and a lease term of not less than five (5) years at a rent equal or greater than $6.00 per square foot (the “AFL Acceptable Replacement Tenant”), and Lender shall have received and approved the following for the applicable AFL Acceptable Replacement Tenant space, (i) copies of paid invoices and lien waivers, satisfactory to Lender in its sole discretion, from all contractors performing the tenant improvements to the space at the Property leased by such AFL Acceptable Replacement Tenant, (ii) the receipt of an acceptable estoppel confirming the terms of such lease and the occupancy of the AFL Acceptable Replacement Tenant, (iii) if required by the Lender, receipt of a Subordination, Non-disturbance and Attornment Agreement in form and substance satisfactory to Lender executed by the AFL Acceptable Replacement Tenant, (iv) delivery of evidence to Lender that such tenant has commenced the payment of the first full month’s rent under such lease, (v) a final certificate of occupancy for the tenant’s space and (vi) delivery of such other documents as Lender may reasonably require (the items set forth in clauses (i) through (vi) are collectively referred to as the “AFL Acceptable Replacement Tenant Requirements”). Notwithstanding the above, and provided that no Event of Default exists, amounts on deposit in the AFL Leasing Reserve Account shall be released to the Borrower not more than once per month in amounts not less than $50,000.00 per request for the reimbursement of ninety percent (90%) of the market rate tenant improvement and leasing commission expenses incurred by Borrower in connection with AFL Space at the Property leased by Borrower to a single AFL Acceptable Replacement Tenant, and Lender shall have received and approved the following for the applicable AFL Acceptable Replacement Tenant space: (a) copies of paid invoices and lien waivers, satisfactory to Lender in its sole discretion, from all contractors performing the tenant improvements to the space at the Property leased by such AFL Acceptable Replacement Tenant and (b) evidence, satisfactory to Lender in its sole discretion, that the contract for the tenant improvements and the leasing commission agreement incurred by Borrower with respect to such single AFL Acceptable Replacement Tenant exceeds $50,000.00 (the conditions in clauses (a) and (b) above are collectively referred to as the “AFL Partial Release Provisions”). The funds for the reimbursement of approved market rate tenant improvement and leasing commission expenses for AFL Space incurred by Borrower for an AFL Acceptable Replacement Tenant that are not released under the AFL Partial Release Provisions for the AFL Space will not be released until Borrower complies with the AFL Acceptable Replacement Tenant Requirements above. Provided that no Event of Default exists, upon the payment in full occupancy of 100% of the Debt AFL Space by AFL Acceptable Replacement Tenants in compliance with the AFL Acceptable Replacement Tenant Requirements, or the current AFL Tenant’s extension of the AFL Lease in accordance with the terms of this Agreement the AFL Lease for a period no less than five (5) years beyond the current expiration date, all amounts remaining on deposit in the AFL Leasing Reserve Account shall be released to Borrower.
(d) The Little Arch Leasing Reserve Account shall be an interest-bearing escrow deposit account for the reimbursement of approved market rate leasing commissions and tenant improvement costs for the other Loan Documents, provided Little Arch Space at the Property. Provided that no Event of Default exists, amounts on deposit in the Little Arch Leasing Reserve Account shall be released to Borrower not more than once per month for the reimbursement of approved market rate tenant improvement and leasing commission expenses incurred by Borrower in connection with the Little Arch Space at the Property leased by Borrower to a Little Arch Acceptable Replacement Tenant (defined below) upon delivery by Borrower to Lender of evidence, satisfactory to Lender, that the Little Arch Space at the Property has been partially or fully leased by a tenant or tenants acceptable to Lender in its sole reasonable discretion under a fully executed lease containing terms and conditions that are acceptable to the Lender, in its sole but reasonable discretion, with market lease terms and a lease term of not less than five (5) years at a rent equal to or greater than the rent last paid by the current Little Arch Tenant (the “Little Arch Acceptable Replacement Tenant”), and Lender shall have received and approved the following for the applicable Little Arch Acceptable Replacement Tenant space, (i) copies of paid invoices and lien waivers, satisfactory to Lender in its sole discretion, from all contractors performing the tenant improvements to the space at the Property leased by such Little Arch Acceptable Replacement Tenant, (ii) the receipt of an acceptable estoppel confirming the terms of such lease and the occupancy of the Little Arch Acceptable Replacement Tenant, (iii) if required by the Lender, receipt of a Subordination, Non-disturbance and Attornment Agreement in form and substance satisfactory to Lender executed by the Little Arch Acceptable Replacement Tenant, (iv) delivery of evidence to Lender that such tenant has commenced the payment of the first full month’s rent under such lease, (v) a final certificate of occupancy for the tenant’s space and (vi) delivery of such other documents as Lender may reasonably require (the items set forth in clauses (i) through (vi) are collectively referred to as the “Little Arch Acceptable Replacement Tenant Requirements”). Notwithstanding the above, and provided that no Event of Default exists, amounts on deposit in the Little Arch Leasing Reserve Account shall be released to the Borrower not more than once per month in amounts not less than $50,000.00 per request for the reimbursement of ninety percent (90%) of the market rate tenant improvement and leasing commission expenses incurred by Borrower in connection with Little Arch Space at the Property leased by Borrower to a single Little Arch Acceptable Replacement Tenant, and Lender shall have received and approved the following for the applicable Little Arch Acceptable Replacement Tenant space: (a) copies of paid invoices and lien waivers, satisfactory to Lender in its sole discretion, from all contractors performing the tenant improvements to the space at the Property leased by such Little Arch Acceptable Replacement Tenant and (b) evidence, satisfactory to Lender in its sole discretion, that the contract for the tenant improvements and the leasing commission agreement incurred by Borrower with respect to such single Little Arch Acceptable Replacement Tenant exceeds $50,000.00 (the conditions in clauses (a) and (b) above are collectively referred to as the “Little Arch Partial Release Provisions”). The funds for the reimbursement of approved market rate tenant improvement and leasing commission expenses for Little Arch Space incurred by Borrower for a Little Arch Acceptable Replacement Tenant that are not released under the Little Arch Partial Release Provisions for the Little Arch Space will not be released until Borrower complies with the Little Arch Acceptable Replacement Tenant Requirements above. Provided that no Event of Default exists, upon the occupancy of 100% of the Little Arch Space by Little Arch Acceptable Replacement Tenants in compliance with the Little Arch Acceptable Replacement Tenant Requirements, all amounts remaining on deposit in the Little Arch Leasing Reserve Account shall be released to Borrower.
(e) In the event the Little Arch Property is defeased and the lien of the Mortgage is released against the Little Arch Property in accordance with Section 5.1(b) of the Note, then Borrower shall deliver to Lender a letter of credit from an acceptable lender in the amount of $650,000.00 that satisfies the Letter of Credit Requirements and is otherwise reasonably acceptable to Lender (i) within five (5) days after the occurrence and during the continuance of a Cash Management Period or (ii) provided no Cash Management Period is then continuingin effect, twelve (12) months prior to the Maturity Date if the AFL Property is not fully leased by AFL Acceptable Replacement Tenants under Leases extending not less than five (5) years after the Maturity Date. Such letter of credit shall be in addition to and released, drawn on and disbursed in the same manner and to the same extent as funds in the AFL Leasing Reserve Account.
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