WITH THE INSURANCE COMPANY OR COMPANIES ON THE
AMOUNT TO BE PAID UPON THE LOSS AND COLLECT AND RECEIPT FOR ANY SUCH INSURANCE
PROCEEDS; PROVIDED, FURTHER, THAT IF (X) AT THE TIME OF THE SETTLEMENT OF SUCH
CLAIM AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING OR (Y) LENDER AND
BORROWER ARE UNABLE TO AGREE UPON A JOINT SETTLEMENT OR (Z) LENDER DISAPPROVES
OF BORROWER'S PROPOSED SETTLEMENT WITH THE INSURANCE COMPANY, THEN LENDER SHALL
SETTLE AND ADJUST SUCH CLAIM UNDER THE "ALL-RISK" OR FLOOD POLICIES, AS
APPLICABLE, WITHOUT THE CONSENT OF BORROWER, AND FOR SUCH PURPOSE IS HEREBY
IRREVOCABLY APPOINTED AS BORROWER'S ATTORNEY-IN-FACT, COUPLED WITH AN INTEREST.
IN ANY SUCH CASE LENDER SHALL AND IS HEREBY AUTHORIZED TO COLLECT AND RECEIPT
FOR ANY SUCH INSURANCE PROCEEDS SUBJECT TO AND TO THE EXTENT PROVIDED FOR IN
THIS AGREEMENT. THE REASONABLE OUT-OF-POCKET EXPENSES INCURRED BY LENDER IN THE
ADJUSTMENT AND COLLECTION OF INSURANCE PROCEEDS SHALL BECOME PART OF THE
INDEBTEDNESS AND BE SECURED BY THE MORTGAGES AND SHALL BE REIMBURSED BY BORROWER
TO LENDER UPON DEMAND THEREFOR.
(B)
IN THE EVENT OF ANY INSURED DAMAGE TO OR DESTRUCTION OF THE
MORTGAGED PROPERTY OR ANY PART THEREOF (HEREIN CALLED AN "INSURED CASUALTY")
WHERE
98
(1)
THE AGGREGATE AMOUNT OF THE LOSS, AS REASONABLY DETERMINED BY AN
INDEPENDENT INSURANCE ADJUSTER, IS LESS THAN TEN PERCENT (10%) OF THE ALLOCATED
LOAN AMOUNT OF THE AFFECTED MORTGAGED PROPERTY,
(2)
IN THE REASONABLE JUDGMENT OF LENDER, THE MORTGAGED PROPERTY CAN
BE RESTORED, REPLACED AND/OR REBUILT (COLLECTIVELY, THE "RESTORATION") BY NOT
LATER THAN THE FIRST TO OCCUR OF (A) TWELVE (12) MONTHS AFTER THE DATE OF
CASUALTY AND (B) THE EXPIRATION OF THE BUSINESS INTERRUPTION INSURANCE AND, IN
ANY CASE, NOT LATER THAN SIX (6) MONTHS PRIOR TO THE MATURITY DATE TO AN
ECONOMIC UNIT SUBSTANTIALLY IN THE CONDITION IT WAS IN IMMEDIATELY PRIOR TO THE
INSURED CASUALTY AND IN COMPLIANCE WITH ALL ZONING, BUILDING AND OTHER
APPLICABLE LEGAL REQUIREMENTS (THE "PRE-EXISTING CONDITION") NOT LESS MATERIALLY
VALUABLE (INCLUDING AN ASSESSMENT OF THE IMPACT OF THE TERMINATION OF ANY LEASES
DUE TO SUCH INSURED CASUALTY) AND NOT LESS USEFUL THAN THE SAME WAS PRIOR TO THE
INSURED CASUALTY,
(3)
LENDER REASONABLY DETERMINES THAT THE RENTAL INCOME OF THE
MORTGAGED PROPERTY, AFTER THE RESTORATION THEREOF TO THE PRE-EXISTING CONDITION,
WILL BE SUFFICIENT TO MEET ALL OPERATING EXPENSES, PAYMENTS FOR RESERVES AND
PAYMENTS OF PRINCIPAL AND INTEREST UNDER THE LOAN AND SATISFY THE DEBT SERVICE
COVERAGE TEST, AND
(4)
TENANT LEASES REQUIRING PAYMENT OF ANNUAL RENT EQUAL TO AT LEAST
SEVENTY-FIVE PERCENT (75%) OF THE GROSS REVENUES FROM THE MORTGAGED PROPERTY
DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF SUCH FIRE
OR OTHER CASUALTY REMAIN IN FULL FORCE AND EFFECT DURING AND AFTER THE
RESTORATION OF THE MORTGAGED PROPERTY (SUBJECT TO THE RENT ABATEMENT PROVISIONS
THEREOF APPLICABLE AS A RESULT OF THE CASUALTY, SO LONG AS SUCH ABATEMENT WILL
END, AND FULL RENTAL PAYMENTS SHALL RESUME, UPON SUBSTANTIAL COMPLETION OF THE
RESTORATION),
or if Lender otherwise