OF INSURANCE, ENDORSING THE NAME OF BORROWER ON ANY CHECK, DRAFT, INSTRUMENT OR
OTHER ITEM OF PAYMENT OF THE PROCEEDS OF SUCH POLICIES OF INSURANCE AND FOR
MAKING ALL DETERMINATIONS AND DECISIONS WITH RESPECT TO SUCH POLICIES OF
INSURANCE REQUIRED ABOVE OR TO PAY ANY PREMIUM IN WHOLE OR IN PART RELATING
THERETO.
LENDER, WITHOUT WAIVING OR RELEASING ANY OBLIGATION OR DEFAULT BY
BORROWER HEREUNDER, MAY (BUT SHALL BE UNDER NO OBLIGATION TO DO SO) AT ANY TIME
OR TIMES HEREAFTER MAINTAIN SUCH ACTION WITH RESPECT THERETO AS LENDER DEEMS
ADVISABLE.
ALL SUMS DISBURSED BY LENDER IN CONNECTION THEREWITH, INCLUDING
REASONABLE ATTORNEYS' FEES, COURT COSTS, EXPENSES AND OTHER CHARGES RELATING
THERETO, SHALL BE PAYABLE, ON DEMAND, BY BORROWER TO LENDER AND SHALL BE
ADDITIONAL OBLIGATIONS HEREUNDER SECURED BY THE LEASEHOLD MORTGAGE AND EACH OF
THE OTHER LOAN DOCUMENTS WHICH SECURE THE OBLIGATIONS.
LENDER AGREES NOT TO
EXERCISE THE POWER OF ATTORNEY GRANTED IN THIS SUBPARAGRAPH (B) UNTIL THE
OCCURRENCE OF AN EVENT OF DEFAULT.
(C)
ALL PROCEEDS OF THE INSURANCE REQUIRED TO BE
OBTAINED BY BORROWER HEREUNDER, OTHER THAN THOSE RELATING TO THE INSURANCE
REQUIRED UNDER CLAUSE (V) OF SUBPARAGRAPH (A) HEREOF, SHALL BE PAID TO LENDER.
LENDER MAY DEDUCT FROM SUCH PROCEEDS ANY EXPENSES, INCLUDING, WITHOUT
LIMITATION, REASONABLE LEGAL FEES, INCURRED BY IT IN CONNECTION WITH ADJUSTING
54
AND OBTAINING SUCH PROCEEDS (THE BALANCE REMAINING AFTER SUCH DEDUCTION BEING
HEREINAFTER REFERRED TO AS THE "NET INSURANCE PROCEEDS"), AND THEREAFTER LENDER
MAY, SUBJECT TO SUBSECTION (D) IMMEDIATELY BELOW, APPLY SUCH PROCEEDS TOWARD THE
PAYMENT OR PERFORMANCE OF BORROWER'S OBLIGATIONS EVIDENCED BY THIS AGREEMENT,
THE NOTES OR ANY OTHER LOAN DOCUMENTS, WHETHER OR NOT SUCH OBLIGATIONS ARE THEN
DUE, OR RELEASE SUCH PROCEEDS TO BORROWER IN ACCORDANCE WITH THE TERMS AND
CONDITIONS OF THE LEASEHOLD MORTGAGE.
SO LONG AS BORROWER SHALL NOT BE IN
DEFAULT HEREUNDER, BORROWER SHALL HAVE THE RIGHT TO PARTICIPATE WITH LENDER IN
THE ADJUSTMENT AND COMPROMISE OF ANY CLAIMS, BUT THE DECISION OF LENDER IN ANY
SUCH CASE SHALL BE BINDING AND CONCLUSIVE UPON BORROWER.
(D)
IN CASE OF ANY LOSS COVERED BY INSURANCE OR IN
CASE OF ANY DAMAGE CAUSED BY A TAKING OR EXERCISE OF EMINENT DOMAIN,
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, PROVIDED THAT (I) NO
EVENT OF DEFAULT THEN EXISTS, (II) THE CONSTRUCTION/TERM LOAN MATURITY DATE DOES
NOT FALL WITHIN THE SIX (6) MONTH PERIOD FOLLOWING THE DATE OF THE CASUALTY OR
TAKING, (III) IN LENDER'S GOOD FAITH JUDGMENT THE IMPROVEMENTS CAN BE REPAIRED
OR RESTORED PRIOR TO THE CONSTRUCTION/TERM LOAN MATURITY DATE, (IV) LENDER
REASONABLY DETERMINES THE RESTORATION OF THE IMPROVEMENTS IS ECONOMICALLY
FEASIBLE, (V) LENDER REASONABLY DETERMINES THAT THE BORROWER'S OPERATION OR
FINANCIAL CONDITION WILL MATERIALLY BENEFIT FROM RESTORATION OF THE COLLATERAL,
(VI) BORROWER IS A VIABLE OPERATING ENTITY AT THE TIME THE LOSS OCCURRED, AND
(VII) BORROWER DEPOSITS WITH LENDER THE AMOUNT OF DEFICIENCY, IF ANY, BETWEEN
THE ESTIMATED COST OF (X) RESTORATION OR REPAIR AND COMPLETION OF THE
IMPROVEMENTS (AS DETERMINED BY LENDER IN ITS GOOD