AND OTHER FUNDS OF BORROWER OR LOAN PROCEEDS THAT ARE
AVAILABLE TO BE DISBURSED FOR CONSTRUCTION COSTS IN ACCORDANCE WITH THE
CONSTRUCTION BUDGET, AND (VIII) IN LENDER'S REASONABLE JUDGMENT, FOLLOWING THE
RESTORATION OF THE PROJECT, THE LOAN TO VALUE RATIO SHALL NOT EXCEED 60%.
SECTION 17.2
BORROWER'S OBLIGATION TO REBUILD.
(A)
IF LENDER DOES NOT ELECT (OR DOES NOT HAVE THE RIGHT) TO APPLY THE
PROCEEDS TO THE DEBT, AS PROVIDED IN SECTION 17.1 ABOVE, BORROWER SHALL:
(I)
PROCEED WITH DILIGENCE TO MAKE SETTLEMENT WITH INSURERS OR
GOVERNMENTAL AUTHORITIES AND CAUSE THE PROCEEDS TO BE DEPOSITED WITH LENDER;
(II)
IN THE EVENT OF ANY DELAY IN MAKING SETTLEMENT WITH INSURERS OR
GOVERNMENTAL AUTHORITIES OR EFFECTING COLLECTION OF THE PROCEEDS, DEPOSIT WITH
LENDER SUCH AMOUNT AS LENDER REASONABLY DEEMS APPROPRIATE TO INSURE THE TIMELY
COMPLETION OF CONSTRUCTION AS AFORESAID;
(III)
IF THE PROCEEDS AND THE UNDISBURSED BALANCE OF THE LOAN ARE
INSUFFICIENT TO MAINTAIN THE LOAN IN BALANCE, PROMPTLY DEPOSIT WITH LENDER ANY
AMOUNT NECESSARY TO PLACE THE LOAN IN BALANCE; AND
(IV)
PROMPTLY PROCEED WITH THE RESUMPTION OF CONSTRUCTION OF THE
IMPROVEMENTS, INCLUDING THE REPAIR OF ALL DAMAGE RESULTING FROM SUCH FIRE,
CONDEMNATION OR OTHER CAUSE AND RESTORATION TO ITS FORMER CONDITION.
(B)
ANY REQUEST BY BORROWER FOR A DISBURSEMENT BY LENDER OF PROCEEDS AND
FUNDS DEPOSITED BY BORROWER SHALL BE TREATED BY LENDER AS IF SUCH REQUEST WERE
FOR AN ADVANCE
64
OF THE LOAN HEREUNDER, AND THE DISBURSEMENT THEREOF SHALL BE CONDITIONED UPON
BORROWER'S COMPLIANCE WITH AND SATISFACTION OF THE SAME CONDITIONS PRECEDENT AS
WOULD BE APPLICABLE UNDER THIS AGREEMENT FOR AN ADVANCE OF THE LOAN.
(C)
NOTWITHSTANDING THE FOREGOING, THE BORROWER MAY, AT BORROWER'S OPTION,
ELECT TO PREPAY THE LOAN WITHOUT ANY PENALTY AFTER A CASUALTY OR CONDEMNATION IN
LIEU OF RESTORING THE PROPERTY.
ARTICLE XVIII
TRANSFERS
SECTION 18.1
PROHIBITION OF ASSIGNMENTS AND TRANSFERS BY BORROWER.
(A)
BORROWER SHALL NOT ASSIGN ITS RIGHTS UNDER THIS AGREEMENT AND ANY
PURPORTED ASSIGNMENT SHALL BE VOID.
EXCEPT AS PROVIDED IN SECTION 18.1(B) BELOW
OR IN CONNECTION WITH A PERMITTED TRANSFER, WITHOUT THE PRIOR WRITTEN CONSENT OF
LENDER (WHICH CONSENT MAY BE WITHHELD BY LENDER IN ITS SOLE DISCRETION),
BORROWER SHALL NOT SUFFER OR PERMIT (A) ANY CHANGE IN THE MANAGEMENT (WHETHER
DIRECT OR INDIRECT) OF THE PROJECT OR OF BORROWER OR (B) ANY TRANSFER. LENDER'S
CONSENT IF GIVEN IN CONNECTION WITH ANY TRANSFER REQUEST SHALL NOT BE DEEMED TO
BE A WAIVER OF LENDER'S RIGHT TO REQUIRE SUCH CONSENT IN THE FUTURE.
ANY SALE,
CONVEYANCE, ALIENATION, MORTGAGE, ENCUMBRANCE, PLEDGE OR TRANSFER OF THE PROJECT
MADE IN CONTRAVENTION OF THIS AGREEMENT SHALL BE NULL AND VOID AND OF NO FORCE
OR EFFECT.
(B)
IN CONNECTION WITH ANY CORPORATE EQUITY OR DEBT FINANCING MADE BY AN
INSTITUTIONAL LENDER FOR THE BENEFIT OF ANY OF MAUI LAND & PINEAPPLE COMPANY,
INC., EXCLUSIVE RESORTS AND MARRIOT INTERNATIONAL, INC. (EACH, A "PRINCIPAL"),
PRINCIPAL SHALL HAVE THE RIGHT TO PLEDGE ITS RESPECTIVE LIMITED LIABILITY
COMPANY INTERESTS IN MLP KB PARTNER LLC, A HAWAII LIMITED LIABILITY