Damage or Destruction If any Property shall be damaged or destroyed, in whole or in part, by fire or other property hazard or casualty, Borrower shall give prompt notice thereof to Lender and one hundred (100%) percent of the net amount of all insurance proceeds received by Lender or Borrower as a result of such damage or destruction after deduction of reasonable costs and the expenses, if any, in collecting the same, shall be applied in reduction of the outstanding Principal Balance under the Note pertaining to the Damaged Property. Notwithstanding anything to the contrary set forth above, if a particular Property (a "DAMAGED PROPERTY") shall be damaged or destroyed, in whole or in part, by fire or other casualty, Lender shall, in accordance with the provisions of this Section hereinafter set forth, make the net amount of all insurance proceeds received by Lender pursuant to the provisions of this Agreement as a result of such damage or destruction after deduction of its reasonable costs and expenses, if any, in collecting the same (hereinafter referred to as the "NET PROCEEDS") available for the repair and restoration of the Damaged Property, provided that (i) no default shall have occurred and shall be continuing under the Loan Documents, (ii) Borrower shall commence the repair and restoration of the Damaged Property, as nearly as possible to the condition the Damaged Property was in immediately prior to such fire or other casualty, with such alterations as may be approved by Lender, as soon as reasonably practicable, and shall diligently pursue the same to satisfactory completion, (iii) Lender shall be satisfied that any operating deficits which will be incurred with respect to the Damaged Property as a result of the occurrence of any such fire or other casualty will be covered out of the Net Proceeds or by Borrower out-of-pocket or with the proceeds, if any, of business interruption or rental interruption insurance, (iv) Lender shall be satisfied that, within a reasonable period of time, not to exceed one hundred eighty (180) days following the completion of such repair and restoration of the Damaged Property, the gross cash flow and the net cash flow of the Damaged Property will be restored to a level sufficient to cover all carrying costs and operating expenses of the Damaged Property, (v) Lender shall be satisfied that the repair and restoration of the Damaged Property will be completed on or before the earlier to occur of (w) ninety (90) days prior to the Maturity Date, or (x) the date on which the business interruption insurance covered by such Borrower shall expire, (vi) Lender shall be satisfied that all of the terms, covenants and provisions of this Agreement and the other Loan Documents will continue to be complied with during and subsequent to the completion of such repair and restoration and (vii) Borrower and ARC IV shall execute and deliver to Lender a completion guaranty in form and substance satisfactory to Lender pursuant to the provisions of which Borrower and ARC IV shall jointly and severally guaranty to Lender the lien-free completion of the repair and restoration of the Damaged Property in accordance with the provisions of this paragraph. The Net Proceeds shall be held by Lender in an interest-bearing account, and until disbursed in accordance with the provisions of this paragraph, shall constitute additional security for the payment of the Debt. The Net Proceeds together with interest earned thereon, shall be disbursed by Lender to, or as directed by, Borrower from time to time during the course of the repair and restoration of the Damaged Property, upon receipt of evidence satisfactory to Lender (which evidence shall in each instance and to the full extent required by Lender include receipted bills, invoices, lien waivers and a continuation and date down of title to the Damaged Property in form satisfactory to Lender and issued by the title company insuring the lien of the Mortgage encumbering such Property or another title company satisfactory to Lender) that (i) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the repair and restoration of the Damaged Property have been paid for in full, and (ii) there exist no notice of pendency, stop order, notice of intention to file mechanic's or materialman's lien, mechanic's or materialman's lien or other lien or encumbrance of any nature whatsoever on the Damaged Property arising out of the repair and restoration of the Damaged Property which have not either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured over to the satisfaction of Lender by the title company insuring the lien of the Mortgage encumbering the Damaged Property. The repair and restoration of the Damaged Property shall be done and completed by Borrower in an expeditious and diligent fashion and in compliance with all applicable governmental laws, rules and regulations (including, without limitation, all applicable Environmental Requirements), and all plans and specifications required in connection with the repair and restoration of the Damaged Property shall be subject to review and acceptance in all respects by Lender and by the Consultant. If Lender fails to respond within ten (10) Business Days following a request and submissions of plans and specifications for approval, such plans and specification shall be deemed approved by Lender. Upon the occurrence of an Event of Default, Lender shall have the use of such plan and specifications and all permits, licenses and approvals required or obtained in connection with the repair and restoration of the Damaged Property. The identity of the contractors, subcontractors and materialmen engaged in the repair and restoration of the Damaged Property, as well as the contracts under which they have been engaged, shall be identified to Lender and Consultant, if any. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the repair and restoration of the Damaged Property including, without limitation, reasonable counsel fees and reasonable fees of the Consultant, shall be paid by Borrower. In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of the repair and restoration of the Damaged Property,
Damage, Destruction and Condemnation (a) In the event that at any time during the term of this Agreement the whole or part of the Facility shall be damaged or destroyed, or taken or condemned by a competent authority for any public use or purpose, or by agreement among the Agency, the Lessee and those authorized to exercise such right, or if the temporary use of the Facility shall be so taken by condemnation or agreement (a “Loss Event”) (i) the Agency shall have no obligation to rebuild, replace, repair or restore the Facility, (ii) there shall be no abatement, postponement or reduction in the Rental Payments payable by the Lessee under this Agreement or any other Project Document to which it is a party, and (iii) the Lessee will promptly give written notice of such Loss Event to the Agency, generally describing the nature and extent thereof. (b) In the event a Loss Event shall occur, the Lessee shall (i) at its own cost and expense (except to the extent paid from the Net Proceeds as provided below), promptly and diligently rebuild, replace, repair or restore the Facility to substantially its condition immediately prior to the Loss Event, or to a condition of at least equivalent value, operating efficiency and function, regardless of whether or not the Net Proceeds derived from the Loss Event shall be sufficient to pay the cost thereof, and the Lessee shall not by reason of payment of any such excess costs be entitled to any reimbursement from the Agency, nor shall the Rental Payments payable by the Lessee under this Agreement or any other Project Document to which it is a party be abated, postponed or reduced, or (ii) exercise its option to purchase the Agency’s interest in the facility and to terminate this Agreement as provided in Section 8.1 hereof. As soon as practicable but no later than ninety (90) days after the occurrence of the Loss Event, the Lessee shall advise the Agency in writing of the action to be taken by the Lessee under this Section 5.1(b). (c) All rebuilding, replacements, repairs or restorations of the Facility in respect of or occasioned by a Loss Event shall (i) automatically be deemed a part of the Facility and shall be subject to this Agreement and the Sublease Agreement, (ii) be effected only if the Lessee shall deliver to the Agency an Opinion of Counsel reasonably acceptable to the Agency to the effect that such rebuilding, replacement, repair or restoration shall not change the nature of the Facility as an Approved Facility and a qualified “project” as defined in the Act, (iii) (Reserved), and (iv) be effected following the settlement of any insurance claim relating thereto with due diligence in a good and workmanlike manner, in compliance with all applicable legal requirements and be promptly and fully paid for by the Lessee in accordance with the terms of the applicable contract(s) therefor. (d) (Reserved). (e) The Agency and the Lessee shall cooperate and consult with each other in all matters pertaining to the settlement, compromise, arbitration or adjustment of any claim or demand on account of any Loss Event. (f) Notwithstanding anything contained herein to the contrary, if all or substantially all of the Facility shall be taken or condemned, or if the taking or condemnation renders the Facility unsuitable for use by the Lessee (or Sublessee) as determined by Xxxxxx as contemplated hereby, the Lessee shall exercise its option to terminate this Agreement as provided in Section 8.1 hereof. (g) The Lessee shall be entitled to any insurance proceeds or condemnation award, compensation or damages attributable to the Facility. (h) The Lessee hereby waives the provisions of Section 227 of the New York Real Property Law or any law of like import now or hereafter in effect.