Fill and Sign the Tenant Refitting Escrow Agreement Form

TENANT REFITTING ESCROW AGREEMENT (LOAN NO. ) This Escrow Agreement made this ____ day of ____________, 20___, by and among __________________________,a____________________Borrower"),____________________, a ____________________________________("Lender");and ________________________________, a _______________________________ ("Escrow Agent"); WITNESSETH: WHEREAS, the Borrower is the owner of property (the "Property") described on Exhibit "__" attached hereto and incorporated herein by reference; andWHEREAS, the Lender made a loan to Borrower in the amount of __________________________________________ ($ ) (the "Loan") evidenced by a Real Estate Note (the "Note") dated ____________ ___,_____ and secured by a Deed of Trust and Security Agreement of even date covering the Property (the "Deed of Trust") and by an Assignment of Lessor's Interest in Leases with Assignment of Rents, Income and Cash Collateral of the Property referred to herein as the "Assignment of Leases"); and WHEREAS, Lender has agreed to modify the Loan contingent in part on Borrower establishing an Escrow Account to finance future tenant refitting as the tenant leases covering portions of the Property roll over; andWHEREAS, at the time of the closing of the modification of the Loan, the Borrower shall place in an escrow account (the "Escrow Account") an initial deposit of _________________________________ ($ ) (the "Initial Deposit"); andWHEREAS, Lender and Borrower have agreed that ______________________________________ shall serve as Escrow Agent for the Escrow Account.NOW, THEREFORE, for and in consideration of the premises hereinabove set forth, the parties hereto agree as follows:1. Simultaneously with the execution of this Agreement, Borrower is depositing with Escrow Agent the Initial Deposit that shall be held by Escrow Agent in an interest- -2- bearing account with Escrow Agent. All funds deposited into the Escrow Account shall be deemed to be held in trust by Escrow Agent for the benefit of Borrower and Lender pursuant to this Agreement.2. On ____________ ___, _____, and on the ______ day of each month thereafter until final repayment of the Loan, Borrower shall deposit an additional amount in the Escrow Account equal to the excess cash flow from the income of the Property after the payment of debt service and general operating expenses acceptable to _________________________________________. Notwithstanding the foregoing, the total funds in said Escrow Account shall at no time exceed ______________________________ ($ ).3.Said deposits shall be supported by a monthly reconciliation report or statement in a form acceptable to Lender and transmitted to Lender on or before the ____ day of each month.4. When Borrower renegotiates existing leases and/or executes new leases for all or any of the space in the subject Property, Borrower may submit to the Lender requests for disbursements from the Escrow Account for reimbursement for tenant improvement work performed.Upon written authorization from Lender, Escrow Agent shall disburse to Borrower sums in the amount of the statements submitted as required [but in amounts not less than ____________________________________ ($ ) on each occasion] from the Escrow Funds on receipt by Lender of the following, which shall in form and substance be satisfactory to Lender, in its sole discretion: (a)Copies of statements for the labor, services or materials with respect to which disbursement is requested, certified by Borrower and Borrower's contractor(s) to be true and correct;(b) Approval of all improvements then made to the reasonable satisfaction of Lender and its appraiser; and(c)An Owners and Contractors Affidavit substantially in the form shown in Exhibit "_" attached hereto.In no event shall Borrower be entitled to any disbursement from the Escrow Funds so long as there shall exist any event or condition which, with notice, lapse of time or otherwise, would constitute an Event of Default. -3- 5. Occurrence of any of the following events shall constitute an Event of Default hereunder:(a)Failure to pay when due any installment of principal or interest of the Note after giving effect to any applicable cure period;(b)Nonperformance of any term or condition of this Escrow Agreement after written notice of such default by Lender to Borrower and Borrower has been given _______ ( ) days to cure any monetary default and _______ ( ) days to cure any non- monetary default; or(c) Noncompliance with, or nonconformance of, any of Borrower's obligations or agreements under any agreement securing said Note after giving effect to any applicable cure period, including, but not limited to, the Deed of Trust and the Assignment of Leases.6.If an Event of Default occurs, Lender may direct Escrow Agent to turn over the Escrow Account to Lender, and Lender may apply the amount of the Escrow Account (inclusive of any interest earned thereon) against the principal balance of the Note in any manner the Lender deems appropriate.7. The covenants herein contained shall bind, and the benefits and advantages shall inure to, the respective heirs, executors, administrators, successors, and assigns of the parties hereto, and shall be governed by the laws of the State of ____________.8. Borrower agrees that Lender and Escrow Agent will incur no costs or expenses whatsoever in connection with this Agreement or the administration thereof, and Borrower agrees that all reasonable and necessary costs and expenses shall be borne by Borrower.9. Borrower does hereby pledge and assign unto Lender all right, title and interest in and to the Escrow Account, together with all monies and claims for monies now and hereafter due or payable thereon or in respect thereof. This assignment is made to secure the payment of said Loan and interest and costs that may accrue thereon. The full payment of said Loan will render this assignment void; otherwise said assignment will remain in full force and effect.Borrower does hereby irrevocably authorize and empower said Lender, at any time after an Event of Default has occurred and has not been cured, in its own name or in the name of the Borrower, to apply for withdrawal and receive any and all monies and claims for -4- monies hereby assigned, and apply same to the payment of said Loan and interest and costs that may accrue thereon. Said Escrow Agent is hereby specifically authorized and directed to pay all monies hereby assigned direct to Lender on demand of said Lender.10.The duties of Escrow Agent shall be as follows:(a)During the term of this Agreement, Escrow Agent shall hold and disburse the escrow funds in accordance with the terms and provisions of this Agreement.(b) Lender and Borrower agree and acknowledge that Escrow Agent assumes no liability in connection with this Agreement except for gross negligence or willful misconduct; that Escrow Agent shall never be responsible for the validity, correctness or genuineness of any document or notice referred to under this Agreement; and that Escrow Agent may seek advice from its own counsel and shall be fully protected in any action taken by it in good faith in accordance with the opinion of its counsel. If Escrow Agent shall be unable to determine at any time to whom the escrow funds should be delivered, or if a dispute shall develop between Lender and Borrower concerning to whom the escrow funds should be delivered, then in any such event, Escrow Agent shall deliver the escrow funds in accordance with the written instructions of Lender. In the event that such written instructions shall not be received by Escrow Agent within ten (10) days after Escrow Agent has issued a written request for instructions to Lender, Escrow Agent shall have the right to pay the escrow funds into a court of competent jurisdiction and interplead Lender and Borrower, and then Escrow Agent shall be discharged of any obligations in connection with this Agreement.11. Subject to all nonrecourse or exculpation provisions under the Note, Deed of Trust, Assignment of Leases, or any other agreement between Borrower and Lender relating to said Note, Borrower further agrees to indemnify and hold Lender and Escrow Agent harmless from and against any and all claims, actions, causes of action, judgments, damage, injury, loss, liability, costs and expenses, including, but not limited to, attorneys' fees, expenses and court costs arising out of or in any way resulting from the tenant refitting described by this Agreement or by a default hereunder. -5- 12. In the event of any suit between the parties hereto wherein Escrow Agent is made a party by virtue of acting as Escrow Agent hereunder, or in the event of any suit wherein Escrow Agent interpleads the subject matter of this escrow, Escrow Agent shall be entitled to recover reasonable attorneys' fees and costs incurred, said fees and costs to be charged and assessed as court costs in favor of the prevailing party.13.In the event that Lender shall assign all or any part of its interest in the Note and the Deed of Trust, the assignee or assignees shall succeed to the rights of Lender under this Agreement.14. All notices, requests, and demands hereunder, to be effective, shall be in writing (including by facsimile transmission), addressed to the parties at the following addresses or to such other address as may hereafter be designated by notice in writing: Borrower: ________________________ ________________________ ________________________ Attn: __________________ Telefax No._____________ Lender: ________________________ ________________________ ________________________ Attn: __________________ Telefax No._____________ With a Copy to: ________________________ ________________________ ________________________ Attn: __________________ Telefax No._____________ Escrow Agent: ________________________ ________________________ ________________________ Attn: __________________ Telefax No._____________Notice shall be deemed to have been duly made and given:(a)when delivered in hand;(b)one (1) Business Day after being sent by overnight courier service;(c)three (3) Business Days after being deposited in the U.S. mails, postage prepaid; or -6- (d) when received in the case of facsimile transmission and telephonically confirmed.IN WITNESS WHEREOF, each party to this Agreement has caused it to be executed on the day and year first above written.By: BorrowerBy: LenderBy: Escrow AgentSTATE OF ____________COUNTY OF ____________Personally appeared before me, the undersigned authority in and for the said County and State, on this _____ day of _______________, 20___, within my jurisdiction, the within-named _______________________________, who acknowledged that he is __________________________, a ________________________________, and that for and on behalf of the said ___________________, and as its act and deed, he executed the above and foregoing instrument, after first having been duly authorized by said ______________________ so to do. Notary PublicMy Commission Expires:______________________ STATE OF ______________COUNTY OF ____________ -7- Personally appeared before me, the undersigned authority in and for the said County and State, on this _____ day of _______________, 20___, within my jurisdiction, the within-named _______________________ ________________, who acknowledged that he is ___________________ __________________________ of ________________________________________, a ________________________________, and that for and on behalf of said _____________________, and as its act and deed, he executed the above and foregoing instrument, after first having been duly authorized by said ______________________ so to do. Notary PublicMy Commission Expires:_______________________ STATE OF ____________COUNTY OF ______________Personally appeared before me, the undersigned authority in and for the said County and State, on this _______ day of ______________, 20___, within my jurisdiction, the within-named ___________________ _______, who acknowledged that he is ____________________________ of ___________________________________________, a ___________________________________, and that for and on behalf of said ____________, and as its act and deed, he executed the above and foregoing instrument, after first having been duly authorized by said _________ so to do. Notary PublicMy Commission Expires:_______________________