CONNECTION
WITH MAKING THE NET PROCEEDS AVAILABLE FOR THE RESTORATION INCLUDING, WITHOUT
LIMITATION, REASONABLE COUNSEL FEES AND DISBURSEMENTS AND THE CASUALTY
CONSULTANT'S FEES, SHALL BE PAID BY BORROWER.
BORROWER SHALL HAVE THE RIGHT TO
SETTLE ALL CLAIMS UNDER THE POLICIES, PROVIDED THAT (A) NO EVENT OF DEFAULT
EXISTS, (B) BORROWER PROMPTLY AND WITH COMMERCIALLY REASONABLE DILIGENCE
NEGOTIATES A SETTLEMENT OF ANY SUCH CLAIMS, (C) THE INSURER WITH RESPECT TO THE
POLICY UNDER WHICH SUCH CLAIM IS BROUGHT HAS NOT RAISED ANY ACT OF THE INSURED
AS A DEFENSE TO THE PAYMENT OF SUCH CLAIM AND (D) IF SUCH CLAIM EXCEEDS THE
RESTORATION THRESHOLD, BORROWER SHALL NOT SETTLE SUCH CLAIM WITHOUT THE
ADMINISTRATIVE AGENT'S APPROVAL, WHICH APPROVAL SHALL NOT BE UNREASONABLY
WITHHELD, CONDITIONED OR DELAYED, AND ADMINISTRATIVE AGENT SHALL HAVE THE RIGHT
TO PARTICIPATE IN ANY SUCH SETTLEMENT DISCUSSIONS.
IF AN EVENT OF DEFAULT
EXISTS, ADMINISTRATIVE AGENT SHALL, AT ITS ELECTION, HAVE THE EXCLUSIVE RIGHT TO
SETTLE OR ADJUST ANY CLAIMS MADE UNDER THE POLICIES IN THE EVENT OF A CASUALTY.
(IV)
IN NO EVENT
SHALL ADMINISTRATIVE AGENT 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 RESTORATION, AS CERTIFIED BY THE
85
CASUALTY CONSULTANT, MINUS THE RESTORATION RETAINAGE. THE TERM
"RESTORATION RETAINAGE" AS USED IN THIS SUBSECTION 7.4(B) SHALL MEAN AN AMOUNT
EQUAL TO TEN PERCENT (10%) OF THE COSTS ACTUALLY INCURRED FOR WORK IN PLACE AS
PART OF THE RESTORATION, AS CERTIFIED BY THE CASUALTY CONSULTANT, UNTIL SUCH
TIME AS THE CASUALTY CONSULTANT CERTIFIES TO ADMINISTRATIVE AGENT THAT NET
PROCEEDS REPRESENTING FIFTY PERCENT (50%) OF THE REQUIRED RESTORATION HAVE BEEN
DISBURSED.
THERE SHALL BE NO RESTORATION RETAINAGE WITH RESPECT TO COSTS
ACTUALLY INCURRED BY BORROWER FOR WORK IN PLACE IN COMPLETING THE LAST FIFTY
PERCENT (50%) OF THE REQUIRED RESTORATION.
THE RESTORATION RETAINAGE SHALL IN
NO EVENT, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH ABOVE IN THIS
SUBSECTION 7.4(B), BE LESS THAN THE AMOUNT ACTUALLY HELD BACK BY BORROWER FROM
CONTRACTORS, SUBCONTRACTORS AND MATERIALMEN ENGAGED IN THE RESTORATION.
THE
RESTORATION RETAINAGE SHALL NOT BE RELEASED UNTIL THE CASUALTY CONSULTANT
CERTIFIES TO ADMINISTRATIVE AGENT THAT THE RESTORATION HAS BEEN COMPLETED IN
ACCORDANCE WITH THE PROVISIONS OF THIS SUBSECTION 7.4(B) AND THAT ALL APPROVALS
NECESSARY FOR THE RE-OCCUPANCY AND USE OF THE PROPERTY HAVE BEEN OBTAINED FROM
ALL APPROPRIATE GOVERNMENTAL AND QUASI-GOVERNMENTAL AUTHORITIES, AND
ADMINISTRATIVE AGENT RECEIVES EVIDENCE REASONABLY SATISFACTORY TO ADMINISTRATIVE
AGENT THAT THE COSTS OF THE RESTORATION HAVE BEEN PAID IN FULL OR WILL BE PAID
IN FULL OUT OF THE RESTORATION RETAINAGE, PROVIDED, HOWEVER, THAT ADMINISTRATIVE
AGENT WILL RELEASE THE PORTION OF THE RESTORATION RETAINAGE BEING HELD WITH
RESPECT TO ANY CONTRACTOR, SUBCONTRACTOR OR MATERIALMAN ENGAGED IN THE
RESTORATION AS OF THE DATE UPON WHICH THE CASUALTY CONSULTANT CERTIFIES TO
ADMINISTRATIVE AGENT THAT THE CONTRACTOR, SUBCONTRACTOR OR MATERIALMAN HAS
REASONABLY SATISFACTORILY COMPLETED ALL WORK AND HAS SUPPLIED ALL MATERIALS IN
ACCORDANCE WITH THE