|
Obligations and then for the benefit of Creditor (but without creating any duty or liability to
<br />Creditor other than to remit to Creditor distributions, if any, actually received in such
<br />proceedings after the Obligations have been paid and satisfied in full) directly from the receiver,
<br />trustee, custodian, liquidator or representative of Borrower's estate in such proceeding.
<br />Borrower and Creditor shall furnish all assignments, powers or other documents requested by
<br />Bank to facilitate such direct collection by Bank.
<br />10. Receipt of Payments by Creditor. Should Creditor directly or indirectly receive
<br />(i) any payment or distribution not permitted pursuant to Section 3 hereof, or (ii) any Collateral
<br />or proceeds thereof not permitted pursuant to Section 5 hereof, prior to the full and indefeasible
<br />payment and satisfaction of the Obligations and the termination of all financing arrangements
<br />between Bank and Borrower, Creditor will deliver the same to Bank in the form received (except
<br />for the endorsement or assignment of Creditor where necessary), for application to the
<br />Obligations in such order and manner as Bank may elect. Until so delivered, Creditor shall hold
<br />the same, in trust, for Bank as property of Bank, and shall not commingle such property of Bank
<br />with any other property held by Creditor. In the event Creditor fails to make any such
<br />endorsement or assignment, Bank, or any of its officers or employees on behalf of Bank, is
<br />hereby irrevocably authorized in its own name or in the name of Creditor to make such
<br />endorsement or assignment and is hereby irrevocably appointed as Creditor's attorney -in -fact for
<br />those purposes.
<br />11. Bank' s Rights.
<br />(a) Creditor hereby consents that at any time and from time to time, without further
<br />consent of or notice to Creditor and without in any manner affecting, impairing, lessening or
<br />releasing any of the provisions of this Agreement, Bank may, in its sole discretion: (i) renew,
<br />compromise, extend, expand, postpone, waive, accelerate, terminate, change the payment terms
<br />of, or otherwise modify the Obligations or amend, renew, replace or terminate the Loan
<br />Documents or any and all other agreements now or hereafter related to the Obligations; (ii)
<br />extend credit to Borrower in whatever amount on a secured or unsecured basis or take other
<br />support for the Obligations and exchange, enforce, waive, sell, transfer, collect, adjust or release
<br />any such security or other support or any part thereof; (iii) apply any and all payments or
<br />proceeds of such security or other support and in any order or manner as Bank, in its discretion,
<br />may determine; and (iv) release or substitute any party liable on the Obligations, any guarantor
<br />of the Obligations, or any other party providing support for the Obligations. Notwithstanding
<br />anything in this Agreement to the contrary, during the term of this Agreement: (x) Bank shall
<br />not modify the Loan Documents to increase the aggregate maximum principal amount of the
<br />Loans; and (y) Creditor shall not modify the Creditor Documents to increase the aggregate
<br />maximum principal amount of the Mezzanine Loans.
<br />(b) This Agreement will not be affected, impaired or released by any delay or failure
<br />of Bank to exercise any of its rights and remedies against Borrower or any Guarantor or under
<br />any of the Obligations or against any Collateral, by any failure of Bank to take steps to perfect or
<br />maintain its lien on, or to preserve any rights to, any Collateral by any irregularity,
<br />unenforceability or invalidity of any of the Obligations or any part thereof or any security or
<br />Guaranty therefor, or by any other event or circumstance which otherwise might constitute a
<br />1616593v10 (4982- 95337)
<br />7
<br />
|