OR (IV) A MEMBER OF THE IMMEDIATE FAMILY OF ANY SUCH STOCKHOLDER,
DIRECTOR, OFFICER, EMPLOYEE, PARTNER, CUSTOMER, SUPPLIER OR OTHER PERSON.
(Q)
BORROWER SHALL NOT CAUSE OR PERMIT THE SPC PARTY OR ITS MEMBERS AND/OR
MANAGERS TO TAKE ANY ACTION WHICH, UNDER THE TERMS OF ANY OF ITS ORGANIZATIONAL
DOCUMENTS REQUIRES THE VOTE OF ANY SPC PARTY OF BORROWER UNLESS AT THE TIME OF
SUCH ACTION THERE SHALL BE AT LEAST ONE (1) MEMBER OF THE BOARD OF DIRECTORS WHO
IS AN INDEPENDENT DIRECTOR.
(R)
BORROWER SHALL ALLOCATE FAIRLY AND REASONABLY ANY OVERHEAD EXPENSES
THAT ARE SHARED WITH AN AFFILIATE, INCLUDING PAYING FOR OFFICE SPACE AND
SERVICES PERFORMED BY ANY EMPLOYEE OF AN AFFILIATE OR RELATED PARTY.
(S)
BORROWER SHALL NOT PLEDGE ITS ASSETS FOR THE BENEFIT OF ANY OTHER
PERSON OTHER THAN WITH RESPECT TO THE LOAN.
(T)
BORROWER SHALL MAINTAIN A SUFFICIENT NUMBER OF EMPLOYEES IN LIGHT OF
ITS CONTEMPLATED BUSINESS OPERATIONS AND PAY THE SALARIES OF ITS OWN EMPLOYEES
FROM ITS OWN FUNDS.
(U)
BORROWER SHALL CONDUCT ITS BUSINESS SO THAT THE ASSUMPTIONS MADE WITH
RESPECT TO BORROWER IN THE NON-CONSOLIDATION OPINION SHALL BE TRUE AND CORRECT
IN ALL RESPECTS.
ARTICLE XVII
CASUALTY AND CONDEMNATION
SECTION 17.1
LENDER'S ELECTION TO APPLY PROCEEDS TO THE DEBT.
(A)
SUBJECT TO THE PROVISIONS OF SECTION 17.1(B) BELOW, LENDER MAY ELECT TO
APPLY TO THE DEBT, IN SUCH ORDER OF PRIORITY AS LENDER ELECTS IN ITS SOLE
DISCRETION, ALL PROCEEDS
63
OF INSURANCE OR CONDEMNATION (INDIVIDUALLY AND COLLECTIVELY REFERRED TO AS
"PROCEEDS"), AFTER DEDUCTION OF ALL EXPENSES OF COLLECTION AND SETTLEMENT,
INCLUDING ATTORNEYS' AND ADJUSTERS' FEES AND CHARGES.
ANY PROCEEDS REMAINING
AFTER REPAYMENT OF THE INDEBTEDNESS UNDER THE LOAN DOCUMENTS SHALL BE PAID BY
LENDER TO BORROWER.
(B)
NOTWITHSTANDING ANYTHING IN SECTION 17.1(A) TO THE CONTRARY, IN THE
EVENT OF ANY CASUALTY TO THE IMPROVEMENTS OR ANY CONDEMNATION OF PART OF THE
PROJECT, LENDER AGREES TO MAKE THE PROCEEDS AVAILABLE FOR RESTORATION OF THE
IMPROVEMENTS IF (I) NO EVENT OF DEFAULT EXISTS THAT WILL NOT BE CURED UPON
BORROWER'S COMMENCEMENT OF RESTORATION, (II) ALL PROCEEDS ARE DEPOSITED WITH
LENDER, (III) IN LENDER'S REASONABLE JUDGMENT, THE AMOUNT OF PROCEEDS AVAILABLE
FOR RESTORATION OF THE IMPROVEMENTS (TOGETHER WITH UNDISBURSED PROCEEDS OF THE
LOAN, IF ANY, ALLOCATED FOR THE COST OF THE CONSTRUCTION AND ANY SUMS OR OTHER
SECURITY ACCEPTABLE TO LENDER DEPOSITED WITH LENDER BY BORROWER FOR SUCH
PURPOSE) IS SUFFICIENT TO PAY THE FULL AND COMPLETE COSTS OF SUCH RESTORATION,
(IV) IN LENDER'S REASONABLE DETERMINATION, THE PROJECT CAN BE RESTORED TO AN
ARCHITECTURALLY AND ECONOMICALLY VIABLE PROJECT IN COMPLIANCE WITH APPLICABLE
LAWS, (V) GUARANTOR REAFFIRMS THE COMPLETION GUARANTY IN WRITING, (VI) IN
LENDER'S REASONABLE DETERMINATION, SUCH RESTORATION IS LIKELY TO BE COMPLETED NO
LATER THAN THE MATURITY DATE, (VII) IN LENDER'S REASONABLE JUDGMENT, ANY
OPERATING DEFICITS, INCLUDING ALL PAYMENTS OF INTEREST AND PRINCIPAL DUE
HEREUNDER, THAT SHALL BE INCURRED BY REASON OF THE CASUALTY OR CONDEMNATION
SHALL BE COVERED BY THE PROCEEDS, THE INSURANCE COVERAGE REFERRED TO IN SECTION
16.2(A)(III) ABOVE,