Casualty and Restoration. (a) In the event of any casualty to the Property, Borrower shall promptly commence and diligently prosecute to completion the repair, replacement, restoration and rebuilding of the Property (the "Restoration Work") so damaged, destroyed or taken in full compliance with all Legal Requirements and the provisions of this Article III, and free and clear from any and all Liens, claims and encumbrances. (b) Following (i) the occurrence of a Taking in which Lender approves, in its sole discretion, Borrower's request to rebuild, or (ii) an insured casuxxxx, Xxnder shall apply the Net Proceeds to pay the cost of the Restoration Work in accordance with Section 3.4 hereof provided: (i) no Event of Default exists; (ii) Borrower has provided its written (A) agreement to proceed promptly and diligently with the Restoration Work in compliance with all Legal Requirements and plans and specifications approved by an Architect, the applicable Governmental Authority and, if requested, Lender and (B) certification setting forth a reasonable estimate of the cost of completing the Restoration Work and time schedule therefor; (iii) the Restoration Work can be completed prior to the earlier of (A) one year prior to the Maturity Date, or (B) the date occurring six (6) months after the date of the casualty or Taking; (iv) in Lender's sole judgment, there are sufficient proceeds xx xxxiness interruption, rent insurance or cash available to pay the Debt through the completion of the Restoration Work and any reasonable period thereafter for leasing the Property; (v) in the event of a casualty, Borrower provides substantiation requested by and satisfactory to Lender with respect to: (A) the feasibility and reasonability of the schedule and costs; (B) the restoration of the Property resulting in an economically viable project at least equivalent to the quality and character of the Property immediately prior to the casualty; (C) the projected income and cash flow of the Property after the restoration being at least equivalent to the levels prior to the casualty; (D) the sufficiency of the Net Proceeds to complete the Restoration Work during all phases of such work; and (E) this Deed of Trust remaining a first priority lien on the Property. (c) If the cost of the Restoration Work exceeds the Net Proceeds, Borrower shall deliver to Lender either: (i) cash collateral; (ii) an unconditional, irrevocable, transferable letter of credit in form, substance, amount and issued by a bank acceptable to Lender or (iii) a completion bond in form, substance, amount and issued by a surety company acceptable to Lender. (d) Notwithstanding the foregoing, if a casualty involves destruction of seventy-five percent (75%) or more of the Premises, any right to rebuild or restore the Property shall be in Lender's sole discretion. (e) Borrower agrees with Lender that all fees, costs and expenses (including without limitation, all reasonable attorneys' fees, engineers' fees, architects' fees, insurance consultants' fees, title endorsements and all disbursements) incurred by Lender in connection with the restoration of the Propexxx, xeviewing and monitoring the restoration and verifying compliance with this Article III shall constitute a part of the cost of Restoration Work and shall be paid by Borrower.
Appears in 1 contract
Casualty and Restoration. (a) In the event of any Taking or casualty to the Property, Borrower shall promptly commence and diligently prosecute to completion the repair, replacement, restoration and rebuilding of the Property (the "“Restoration Work"”) so damaged, destroyed or taken in full compliance with all Legal Requirements and the provisions of this Article III, and free and clear from any and all Liens, claims and encumbrances.
(b) Following (i) the occurrence of a Taking in which Lender approves, in its sole reasonable discretion, Borrower's ’s request to rebuildfor application of the Net Proceeds towards restoration of the Property, or (ii) an insured casuxxxxcasualty, Xxnder Lender shall apply the Net Proceeds to pay the cost of the Restoration Work in accordance with Section 3.4 hereof provided:
(i) no Event of Default exists;
(ii) Borrower has provided its written (A) agreement to proceed promptly and diligently with the Restoration Work in compliance with all Legal Requirements and plans and specifications reasonably approved by an Architect, the applicable Governmental Authority and, if requested, and Lender and (B) certification setting forth a reasonable estimate of the cost of completing the Restoration Work and time schedule therefor;
(iii) the Restoration Work can be completed prior to the earlier of (A) one year six (6) months prior to the Maturity Date, or Date and (B) the date occurring six (6) months after the date of the casualty or Taking;
(iv) in Lender's sole ’s reasonable judgment, there are sufficient proceeds xx xxxiness of business interruption, rent insurance or cash available to pay the Debt through the completion of the Restoration Work and any reasonable period thereafter for leasing the Property;; and
(v) in the event of a casualty, Borrower provides substantiation reasonably requested by and reasonably satisfactory to Lender with respect to:
(A) the feasibility and reasonability of the schedule and costs;
(B) the restoration of the Property resulting in an economically viable project at least equivalent to the quality and character of the Property immediately prior to the casualty;
(C) the projected income and cash flow of the Property after the restoration being at least equivalent to the levels prior to the casualty;
(D) the sufficiency of the Net Proceeds to complete the Restoration Work during all phases of such work; and;
(E) this Deed of Trust remaining a first priority lien on the Property;
(vi) in the event of a Taking, not more than fifteen percent (15%) of the Improvements have been taken and Lender determines that following restoration of the Property, the Property will have adequate ingress and egress;
(vii) XM Satellite Radio, Inc. (“XM”) has confirmed in writing to Lender that it shall remain in place and paying rent as required under its Lease following the completion of the Restoration Work;
(viii) Lender has received reasonably satisfactory evidence (by way of example, a letter or tenant estoppel certificate from a tenant affirming such tenant’s Lease or waiving a right of termination shall constitute reasonably satisfactory evidence) that sufficient Leases will remain in place and paying rent following the completion of the Restoration Work (the “Continuing Lease Evidence”) such that, immediately following the restoration and/or exhaustion of any business interruption insurance proceeds, the Debt Service Coverage Ratio shall be at least 1.10:1.00 (the “Required Restoration DSCR”); provided, however, that if any tenant (other than XM) has given notice of termination as a result of the casualty or Taking, then either (i) Borrower shall have provided Lender with one or more new Leases (covering one or more tenant space that are not subject to a Lease that will remain in effect following completion of the Restoration Work) satisfying the requirements of this Deed of Trust and/or (ii) provided no bankruptcy or insolvency proceeding involving Original Principal or XM is then pending or expected, Borrower shall have provided Lender with a Lease from XM covering one or more tenant spaces that are not subject to a Lease that will remain in effect following completion of the Restoration Work, such that, when taking into account the aforementioned new Leases and the Leases for which Lender has received the Continuing Lease Evidence, the Property would support, immediately following the completion of the Restoration Work and/or exhaustion of any business interruption insurance proceeds, a Debt Service Coverage Ratio of 1.10:1.00;
(ix) in the event that the insurance proceeds or condemnation awards received as a result of such casualty or partial taking exceed the lesser of (i) five percent (5%) of the then outstanding principal balance of the Note and (ii) $1,000,000, Borrower shall have delivered to Lender, at Borrower’s sole cost and expense, an appraisal report in form and substance reasonably satisfactory to Lender appraising the value for the Property as proposed to be restored or repaired to be not less than the appraised value of the Property considered by Lender in its determination to make the loan secured hereby.
(x) upon Lender’s request, Borrower provides Lender evidence of the availability during and after the Restoration Work of the insurance required to be maintained by Borrower pursuant to Section 1.4. If, pursuant to this Section 3.3(b), a condemnation award or insurance proceeds will not be made available to the Borrower for the Restoration Work, Borrower shall have the right to prepay the Debt within ninety (90) days after Lender’s notice of such result, which prepayment shall be without penalty, premium, fee or yield maintenance charge or any requirement of defeasance.
(c) If the cost of the Restoration Work exceeds the Net Proceeds, Borrower shall deliver to Lender either: (i) cash collateral; (ii) an unconditional, irrevocable, transferable letter of credit in form, substance, amount and issued by a bank having a rating by Standard & Poor’s Rating Services of at least “A” and otherwise reasonably acceptable to Lender or (iii) a completion bond in form, substance, amount and issued by a surety company reasonably acceptable to Lender.
(d) Notwithstanding the foregoing, if a casualty involves destruction of seventyAll reasonable out-five percent (75%) or more of the Premises, any right to rebuild or restore the Property shall be in Lender's sole discretion.
(e) Borrower agrees with Lender that all of-pocket fees, costs and expenses (including without limitation, all reasonable attorneys' ’ fees, engineers' ’ fees, architects' ’ fees, insurance consultants' ’ fees, title endorsements and all disbursements) incurred by Lender in connection with the restoration of the PropexxxProperty, xeviewing reviewing and monitoring the restoration and verifying compliance with this Article III shall constitute a part of the cost of Restoration Work and shall be paid by Borrower.
Appears in 1 contract
Casualty and Restoration. (a) In the event of any casualty to the Property, Borrower shall promptly commence and diligently prosecute to completion the repair, replacement, restoration and rebuilding of the Property (the "Restoration Work") so damaged, destroyed or taken in full compliance with all Legal Requirements and the provisions of this Article III, and free and clear from any and all Liens, claims and encumbrances.
(b) Following (i) the occurrence of a Taking in which Lender approves, in its sole discretion, Borrower's request to rebuild, or (ii) an insured casuxxxxcasualty, Xxnder Lender shall apply the Net Proceeds to pay the cost of the Restoration Work in accordance with Section 3.4 hereof provided:
(i) no Event of Default exists;
(ii) Borrower has provided its written (A) agreement to proceed promptly and diligently with the Restoration Work in compliance with all Legal Requirements and plans and specifications approved by an Architect, the applicable Governmental Authority and, if requested, Lender and (B) certification setting forth a reasonable estimate of the cost of completing the Restoration Work and time schedule therefor;
(iii) the Restoration Work can be completed prior to the earlier of (A) one year prior to the Maturity Date, or (B) the date occurring six (6) months after the date of the casualty or Taking;
(iv) in Lender's sole judgment, there are sufficient proceeds xx xxxiness of business interruption, rent insurance or cash available to pay the Debt through the completion of the Restoration Work and any reasonable period thereafter for leasing the Property;
(v) in the event of a casualty, Borrower provides substantiation requested by and satisfactory to Lender with respect to:
(A) the feasibility and reasonability of the schedule and costs;
(B) the restoration of the Property resulting in an economically viable project at least equivalent to the quality and character of the Property immediately prior to the casualty;
(C) the projected income and cash flow of the Property after the restoration being at least equivalent to the levels prior to the casualty;
(D) the sufficiency of the Net Proceeds to complete the Restoration Work during all phases of such work; and
(E) this Deed of Trust Mortgage remaining a first priority lien on the Property.
(c) If the cost of the Restoration Work exceeds the Net Proceeds, Borrower shall deliver to Lender either: (i) cash collateral; (ii) an unconditional, irrevocable, transferable letter of credit in form, substance, amount and issued by a bank acceptable to Lender or (iii) a completion bond in form, substance, amount and issued by a surety company acceptable to Lender.
(d) Notwithstanding the foregoing, if a casualty involves destruction of seventy-five percent (75%) or more of the Premises, any right to rebuild or restore the Property shall be in Lender's sole discretion.
(e) Borrower agrees with Lender that all fees, costs and expenses (including without limitation, all reasonable attorneys' fees, engineers' fees, architects' fees, insurance consultants' fees, title endorsements and all disbursements) incurred by Lender in connection with the restoration of the PropexxxProperty, xeviewing reviewing and monitoring the restoration and verifying compliance with this Article III shall constitute a part of the cost of Restoration Work and shall be paid by Borrower.
Appears in 1 contract
Casualty and Restoration. (a) In the event of any casualty to the Property, Borrower shall promptly commence and diligently prosecute to completion the repair, replacement, restoration and rebuilding of the Property (the "Restoration Work") so damaged, destroyed or taken in full compliance with all Legal Requirements and the provisions of this Article III, and free and clear from any and all Liens, claims and encumbrances.
(b) Following (i) the occurrence of a Taking in which Lender approves, in its sole discretion, Borrower's request to rebuild, or (ii) an insured casuxxxxcasualty, Xxnder Lender shall apply the Net Proceeds to pay the cost of the Restoration Work in accordance with Section 3.4 hereof provided:
(i) no Event of Default exists;
(ii) Borrower has provided its written (A) agreement to proceed promptly and diligently with the Restoration Work in compliance with all Legal Requirements and plans and specifications approved by an Architect, the applicable Governmental Authority and, if requested, Lender and (B) certification setting forth a reasonable estimate of the cost of completing the Restoration Work and time schedule therefor;
(iii) the Restoration Work can be completed prior to the earlier of (A) one year prior to the Maturity Date, or (B) the date occurring six (6) months after the date of the casualty or Taking;
(iv) in Lender's sole judgment, there are sufficient proceeds xx xxxiness of business interruption, rent insurance or cash available to pay the Debt through the completion of the Restoration Work and any reasonable period thereafter for leasing the Property;
(v) in the event of a casualty, Borrower provides substantiation requested by and satisfactory to Lender with respect to:
(A) the feasibility and reasonability of the schedule and costs;
(B) the restoration of the Property resulting in an economically viable project at least equivalent to the quality and character of the Property immediately prior to the casualty;
(C) the projected income and cash flow of the Property after the restoration being at least equivalent to the levels prior to the casualty;
(D) the sufficiency of the Net Proceeds to complete the Restoration Work during all phases of such work; and
(E) this Deed of Trust remaining a first priority lien on the Property.
(c) If the cost of the Restoration Work exceeds the Net Proceeds, Borrower shall deliver to Lender either: (i) cash collateral; (ii) an unconditional, irrevocable, transferable letter of credit in form, substance, amount and issued by a bank acceptable to Lender or (iii) a completion bond in form, substance, amount and issued by a surety company acceptable to Lender.
(d) Notwithstanding the foregoing, if a casualty involves destruction of seventy-five percent (75%) or more of the Premises, any right to rebuild or restore the Property shall be in Lender's sole discretion.
(e) Borrower agrees with Lender that all fees, costs and expenses (including without limitation, all reasonable attorneys' fees, engineers' fees, architects' fees, insurance consultants' fees, title endorsements and all disbursements) incurred by Lender in connection with the restoration of the PropexxxProperty, xeviewing reviewing and monitoring the restoration and verifying compliance with this Article III shall constitute a part of the cost of Restoration Work and shall be paid by Borrower.
Appears in 1 contract
