FROM TIME TO TIME ARE REPRESENTED BY WORK THAT IS COMPLETED,
IN PLACE AND FREE AND CLEAR OF MECHANICS' AND MATERIALMEN'S LIEN CLAIMS;
(IV)
EACH REQUEST FOR DISBURSEMENT SHALL BE ACCOMPANIED BY A
CERTIFICATE OF TENANT, SIGNED BY THE PRESIDENT OR A VICE PRESIDENT OF TENANT,
DESCRIBING THE WORK FOR WHICH PAYMENT IS REQUESTED, STATING THE COST INCURRED IN
CONNECTION THEREWITH, STATING THAT TENANT HAS NOT PREVIOUSLY RECEIVED PAYMENT
FOR SUCH WORK AND, UPON COMPLETION OF THE WORK, ALSO STATING THAT THE WORK HAS
BEEN FULLY COMPLETED AND COMPLIES WITH THE APPLICABLE REQUIREMENTS OF THIS
LEASE;
(V)
LANDLORD MAY RETAIN TEN PERCENT (10%) OF THE RESTORATION FUND
UNTIL THE WORK IS 50% COMPLETED, THEREAFTER FIVE PERCENT (5%) OF THE RESTORATION
FUND UNTIL THE WORK IS SUBSTANTIALLY COMPLETED AT WHICH TIME THE RETAINAGE SHALL
BE RELEASED, EXCEPT THAT AN AMOUNT EQUAL TO 125% OF THE ESTIMATED COST TO
COMPLETE ANY OPEN PUNCH LIST ITEMS SHALL BE HELD UNTIL ALL PUNCH-LIST ITEMS ARE
COMPLETED;
(VI)
IF THE RESTORATION FUND IS HELD BY LANDLORD, THE RESTORATION FUND
SHALL NOT BE COMMINGLED WITH LANDLORD'S OTHER FUNDS AND SHALL BEAR INTEREST AT A
RATE AGREED TO BY LANDLORD AND TENANT; AND
36
(VII)
SUCH OTHER REASONABLE CONDITIONS AS LANDLORD OR LENDER MAY IMPOSE;
PROVIDED SUCH CONDITIONS ARE CONSISTENT WITH CONDITIONS THEN GENERALLY IMPOSED
OR REQUIRED BY PRUDENT INSTITUTIONAL CONSTRUCTION LENDERS FOR SIMILAR PROPERTIES
SIMILARLY SITUATED.
(B)
PRIOR TO COMMENCEMENT OF RESTORATION AND AT ANY TIME DURING
RESTORATION, IF THE ESTIMATED COST OF COMPLETING THE RESTORATION WORK FREE AND
CLEAR OF ALL LIENS, AS DETERMINED BY LANDLORD, EXCEEDS THE AMOUNT OF THE NET
AWARD AVAILABLE FOR SUCH RESTORATION (A "DEFICIENCY") THEN (I) IF SUCH
DEFICIENCY IS EQUAL TO OR IN EXCESS OF THE THRESHOLD AMOUNT, THEN THE AMOUNT OF
SUCH DEFICIENCY SHALL, UPON DEMAND BY LANDLORD, BE PAID BY TENANT INTO AND TO BE
ADDED TO THE RESTORATION FUND, OR (II) IF SUCH DEFICIENCY IS LESS THAN THE
THRESHOLD AMOUNT, THEN TENANT SHALL NOT BE OBLIGATED TO PAY SUCH AMOUNT INTO THE
RESTORATION FUND, BUT ESCROW AGENT SHALL NOT BE REQUIRED TO RELEASE ANY FUNDS TO
TENANT FROM THE RESTORATION FUND (OTHER THAN AS PROVIDED IN PARAGRAPH 19(A) WITH
RESPECT TO AMOUNTS BELOW THE THRESHOLD AMOUNT FOR IMMEDIATE REPAIRS AND THE
LIKE) UNTIL SUCH TIME AS TENANT HAS EXPENDED ITS OWN FUNDS IN AN AMOUNT AT LEAST
EQUAL TO THE DEFICIENCY TOWARDS THE REPAIR OR RESTORATION OF THE LEASED PREMISES
AND HAS PROVIDED REASONABLE AND CUSTOMARY DOCUMENTARY SUPPORT THEREFOR TO
LANDLORD AND SUCH ESCROWEE.
ANY DEFICIENCY SUM SO ADDED BY TENANT WHICH REMAINS
IN THE RESTORATION FUND UPON COMPLETION OF RESTORATION SHALL BE REFUNDED TO
TENANT.
FOR PURPOSES OF DETERMINING THE SOURCE OF FUNDS WITH RESPECT TO THE
DISPOSITION OF FUNDS REMAINING AFTER THE COMPLETION OF RESTORATION, THE NET
AWARD SHALL BE DEEMED TO BE DISBURSED PRIOR TO ANY AMOUNT ADDED BY TENANT.
(C)
IF ANY SUM REMAINS IN THE RESTORATION FUND AFTER COMPLETION OF THE
WORK AND ANY REFUND TO TENANT PURSUANT TO PARAGRAPH