OR DILAPIDATED AND SHALL COMPLETE AND PAY FOR ANY IMPROVEMENTS AT
ANY TIME IN THE PROCESS OF CONSTRUCTION OR REPAIR.
5.4.2
ALTERATIONS.
BORROWER MAY, WITHOUT LENDER'S CONSENT,
PERFORM ALTERATIONS TO THE IMPROVEMENTS AND EQUIPMENT WHICH (I) DO NOT
CONSTITUTE A MATERIAL ALTERATION, (II) DO NOT ADVERSELY AFFECT BORROWER'S
FINANCIAL CONDITION OR THE VALUE OR NET OPERATING INCOME OF THE PROPERTY AND
(III) ARE IN THE ORDINARY COURSE OF BORROWER'S BUSINESS.
BORROWER SHALL NOT
PERFORM ANY MATERIAL ALTERATION WITHOUT LENDER'S PRIOR WRITTEN CONSENT, WHICH
CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED.
LENDER MAY, AS A
CONDITION TO GIVING ITS CONSENT TO A MATERIAL ALTERATION, REQUIRE THAT BORROWER
DELIVER TO LENDER SECURITY FOR PAYMENT OF THE COST OF SUCH MATERIAL ALTERATION
IN AN AMOUNT EQUAL TO ONE HUNDRED TWENTY-FIVE PERCENT (125%) OF THE COST OF THE
MATERIAL ALTERATION AS ESTIMATED BY LENDER AND BORROWER SHALL BE PERMITTED TO
USE SUCH SECURITY TO MAKE SUCH PAYMENT OF THE COST OF SUCH MATERIAL ALTERATION
BY SATISFYING THE SAME CONDITIONS FOR DISBURSEMENT FROM THE REPLACEMENT RESERVE
SUBACCOUNT SET FORTH IN SECTION 3.13
49
HEREOF AS THOUGH A REQUEST FOR DISBURSEMENT WERE MADE THEREUNDER.
UPON
SUBSTANTIAL COMPLETION OF THE MATERIAL ALTERATION, BORROWER SHALL PROVIDE
EVIDENCE SATISFACTORY TO LENDER THAT (I) THE MATERIAL ALTERATION WAS CONSTRUCTED
IN ACCORDANCE WITH APPLICABLE LEGAL REQUIREMENTS AND SUBSTANTIALLY IN ACCORDANCE
WITH PLANS AND SPECIFICATIONS APPROVED BY LENDER (WHICH APPROVAL SHALL NOT BE
UNREASONABLY WITHHELD OR DELAYED), (II) ALL CONTRACTORS, SUBCONTRACTORS,
MATERIALMEN AND PROFESSIONALS WHO PROVIDED WORK, MATERIALS OR SERVICES IN
CONNECTION WITH THE MATERIAL ALTERATION HAVE BEEN PAID IN FULL AND HAVE
DELIVERED UNCONDITIONAL RELEASES OF LIEN AND (III) ALL MATERIAL LICENSES
NECESSARY FOR THE USE, OPERATION AND OCCUPANCY OF THE MATERIAL ALTERATION (OTHER
THAN THOSE WHICH DEPEND ON THE PERFORMANCE OF TENANT IMPROVEMENT WORK) HAVE BEEN
ISSUED.
BORROWER SHALL REIMBURSE LENDER UPON DEMAND FOR ALL OUT-OF-POCKET COSTS
AND EXPENSES (INCLUDING THE REASONABLE FEES OF ANY ARCHITECT, ENGINEER OR OTHER
PROFESSIONAL ENGAGED BY LENDER) INCURRED BY LENDER IN REVIEWING PLANS AND
SPECIFICATIONS OR IN MAKING ANY DETERMINATIONS NECESSARY TO IMPLEMENT THE
PROVISIONS OF THIS SECTION 5.4.2.
PROVIDED NO DEFAULT OR EVENT OF DEFAULT SHALL
HAVE OCCURRED AND IS CONTINUING, UPON DELIVERY OF EVIDENCE REASONABLY
SATISFACTORY TO LENDER THAT SUCH MATERIAL ALTERATIONS HAVE BEEN FULLY COMPLETED
IN ACCORDANCE WITH THE TERMS OF THIS SECTION 5.4.2, ANY UNUSED PORTION OF ANY
SECURITY DEPOSITED WITH LENDER PURSUANT TO THIS SECTION 5.4.2 SHALL PROMPTLY BE
RELEASED TO BORROWER.
5.5
PERFORMANCE OF OTHER AGREEMENTS.
BORROWER
SHALL OBSERVE AND PERFORM EACH AND EVERY TERM TO BE OBSERVED OR PERFORMED BY
BORROWER PURSUANT TO THE TERMS OF ANY AGREEMENT OR INSTRUMENT AFFECTING OR
PERTAINING TO THE PROPERTY, INCLUDING THE LOAN DOCUMENTS.
5.6
COOPERATE IN LEGAL PROCEEDINGS.
BORROWER
SHALL COOPERATE FULLY WITH LENDER WITH RESPECT TO, AND PERMIT LENDER, AT ITS
OPTION, TO PARTICIPATE IN, ANY PROCEEDINGS BEFORE ANY GOVERNMENTAL AUTHORITY
WHICH MAY IN ANY WAY AFFECT THE RIGHTS OF LENDER UNDER ANY LOAN DOCUMENT.
5.7
FURTHER ASSURANCES.
BORROWER SHALL, AT
BORROWER'S SOLE COST AND EXPENSE, (I)