Common use of Bad Acts Clause in Contracts

Bad Acts. The Loan Parties will not permit any of the following: (i) fraud, malfeasance, gross negligence, willful misconduct, bad faith or intentional misrepresentation or the commission of any criminal act by (i) any Loan Party, any Sponsor or any Affiliate of any Loan Party or any Sponsor in connection with the Facility, including any Advance or any Property or (ii) Property Manager, sub-manager, operator or entity engaged by a Loan Party in connection with the rental, management or operation of any Property, excepting criminal acts by Property Manager, a sub-manager, operator or entity that do not relate to this Facility, any Property or the ability of any such party to perform its obligations under the Loan Documents or that are otherwise immaterial; (ii) any material physical waste of any Financed Property; (iii) the imposition of any consensual Lien or other encumbrance on any Property other than that which is expressly permitted under the terms of this Agreement; (iv) to the extent of available cash flow from the Properties, failure to pay charges for labor or materials or other charges or judgments that can create Liens or other encumbrance on any portion of any Property other than that which is expressly permitted under the terms of this Agreement; (v) to the extent of available cash flow from the Properties, failure by any Loan Party to pay Taxes (except those Taxes which are being contested in good faith by appropriate proceedings and for which adequate reserves are maintained in the Tax Reserve Account), the result of which creates a Lien on any Property; (vi) to the extent of available cash flow from the Properties, failure to meet the Insurance Requirement with respect to any Loan Party or any Property; (vii) the theft, misappropriation or conversion or other failure to remit (to the extent required by the Loan Documents) by any Borrower-Related Party of (A) any Insurance Proceeds paid by reason of any casualty or under any insurance policy, (B) any Condemnation Proceeds, (C) any Conveyance Proceeds or refinancing proceeds to the Collection Account or (D) any other Available Funds or other amounts required to be deposited into any Collection Account, Reserve Account, or any other account established and maintained pursuant to this Agreement; (viii) except as otherwise required by Applicable Law, the failure to deliver security deposits to the Security Deposit Account; (ix) a breach by any Loan Party of any “special purpose entity” or separateness obligation set forth in this Agreement or any other Loan Document;

Bad Acts. The Loan Parties will not permit any of the following: (i) fraud, malfeasance, gross negligence, willful misconduct, bad faith or intentional misrepresentation or the commission of any criminal act by (i) any Loan Party, any Sponsor or any Affiliate of any Loan Party or any Sponsor in connection with the Facility, including any Advance or any Property or (ii) Property Manager, sub-manager, operator or entity engaged by a Loan Party in connection with the rental, management or operation of any Property, excepting criminal acts by Property Manager, a sub-manager, operator or entity that do not relate to this Facility, any Property or the ability of any such party to perform its obligations under the Loan Documents or that are otherwise immaterial; (ii) any material physical waste of any Financed Property; (iii) the imposition of any consensual Lien or other encumbrance on any Property other than that which is expressly permitted under the terms of this Agreement; (iv) to the extent of available cash flow from the Properties, failure to pay charges for labor or materials or other charges or judgments that can create Liens or other encumbrance on any portion of any Property other than that which is expressly permitted under the terms of this Agreement; (v) to the extent of available cash flow from the Properties, failure by any Loan Party to pay Taxes (except those Taxes which are being contested in good faith by appropriate proceedings and for which adequate reserves are maintained in the Tax Reserve Account), the result of which creates a Lien on any Property; (vi) to the extent of available cash flow from the Properties, failure to meet the Insurance Requirement with respect to any Loan Party or any Property; (vii) the theft, misappropriation or conversion or other failure to remit (to the extent required by the Loan Documents) by any Borrower-Related Party of (A) any Insurance Proceeds paid by reason of any casualty or under any insurance policy, (B) any Condemnation Proceeds, (C) any Conveyance Proceeds or refinancing proceeds to the Collection Account or (D) any other Available Funds or other amounts required to be deposited into any Collection Account, Reserve Account, or any other account established and maintained pursuant to this Agreement; (viii) except as otherwise required by Applicable Law, the failure to deliver security deposits to the Security Deposit Account; (ix) a breach by any Loan Party of any “special purpose entity” or separateness obligation set forth in this Agreement or any other Loan Document; (x) any amendment of any Governing Documents of any Loan Party other than as is expressly permitted under the terms of this Agreement; or (xi) any Loan Party’s bad faith interference with the Lenders’ exercise of rights or remedies under any of the Loan Documents, at law or in equity.

Bad Acts. The Loan Parties will It shall not, and it shall not cause or permit any its subsidiaries, to: (a) misappropriate, misapply or convert any Collections, security deposits, or similar amounts derived from any of the following:Property; (ib) fraudfail to pay any homeowners association dues, malfeasancetaxes, gross negligenceassessments, willful misconductmunicipal or governmental rates, bad faith or intentional misrepresentation or the commission of any criminal act by (i) any Loan Partycharges, any Sponsor impositions, liens and water and sewer rents or any Affiliate part thereof, heretofore or hereafter imposed upon it or in respect of any Loan Party the Properties, as well as all similar claims which if unpaid might become a lien or any Sponsor in connection with the Facility, including any Advance or any Property or (ii) Property Manager, sub-manager, operator or entity engaged by charge upon a Loan Party in connection with the rental, management or operation of any Property, excepting criminal acts by Property Manager, a sub-manager, operator or entity that do not relate to this FacilityBorrower, any Property or any other item constituting Collateral or any part thereof (“HOA or Tax Amounts”), unless, in each case, the ability of any such party to perform its obligations under the Loan Documents or that same are otherwise immaterial; (ii) any material physical waste of any Financed Property; (iii) the imposition of any consensual Lien or other encumbrance on any Property other than that which is expressly permitted under the terms of this Agreement; (iv) to the extent of available cash flow from the Properties, failure to pay charges for labor or materials or other charges or judgments that can create Liens or other encumbrance on any portion of any Property other than that which is expressly permitted under the terms of this Agreement; (v) to the extent of available cash flow from the Properties, failure by any Loan Party to pay Taxes (except those Taxes which not delinquent and are being contested in good faith by appropriate proceedings diligently conducted and for which adequate appropriate reserves are maintained have been established in accordance with GAAP, but only to the extent of: (x) Collections received with respect to the Properties and funds in the Insurance and Tax Reserve AccountAccount available to pay such HOA or Tax Amounts; and (y) amounts distributed to the Borrowers or Borrower Representative pursuant to Section 2.8(b)(xiii) of the Credit Agreement as a result of a failure to include in the Insurance and Tax Reserve Account Required Amounts sufficient amounts for HOA or Tax Amounts, whether such failure resulted from a miscalculation or otherwise (and for avoidance of doubt, unpaid HOA or Tax Amounts shall constitute losses under this subsection (ii), but only to the result extent of which creates a Lien on (x) and (y) above); (c) remove and fail to replace (with personal property of the same utility and of similar value) any fixtures, equipment, and/or other articles of personal property owned by it and attached as fixtures to, or used as fixtures in connection with, any Property owned by it, except for removal of obsolete or unnecessary fixtures in the ordinary course of maintaining and renovating such Property; (d) misapply, misappropriate or convert or permit, to the extent of its power, any of its Affiliates to misappropriate, misapply or convert of any Insurance Proceeds, construction proceeds, Condemnation Proceeds, Conveyance Proceeds, any amounts withdrawn from the Ongoing Reserve 53570.000371 EMF_US 44362017v35 Account for the payment of Qualified Expenses or Excess Expenses, any amounts withdrawn from the Insurance and Tax Reserve Account for the payment of any real property taxes or assessments or insurance premiums, any amounts withdrawn from the Renovation Cost Reserve Account for the payment of renovation costs, any amounts withdrawn from the Insurance Proceeds Account for the payment of costs and expenses of repairs to any related Property, any amounts withdrawn from the Flood Damage Reserve Account for the payment of costs and expenses of repairs to any related flood damage Property and/or security deposits affecting any Property; (vie) commit any act(s) of actual waste on or with respect to any Property owned by it; (f) to the extent of available cash flow from Collections received with respect to the Properties, failure to meet Properties and funds in the Insurance Requirement and Tax Reserve Account available therefore, fail to maintain insurance with respect to any Loan Party Property owned by it or any Property; (vii) the theft, misappropriation or conversion or other failure to remit (to the extent otherwise as required by the Loan Documents) by any Borrower-Related Party of (A) any Insurance Proceeds paid by reason of any casualty or under any insurance policy, (B) any Condemnation Proceeds, (C) any Conveyance Proceeds or refinancing proceeds to the Collection Account or (D) any other Available Funds or other amounts required to be deposited into any Collection Account, Reserve Account, or any other account established and maintained pursuant to in this Agreement; (viiig) except as otherwise required by Applicable Law, the failure directly or indirectly transfer title to deliver security deposits to the Security Deposit Accountits Equity Interests; (ixh) a breach by engage in any Loan Party of any “special purpose entity” fraud, willful misconduct or separateness obligation set forth intentional misrepresentation in connection with this Agreement or any other Loan Document; (i) without the prior written consent of the owner of its Equity Interest (the Trust Guarantor, which consent shall be granted only upon prior written consent of the holder of the Equity Interest in the Trust Guarantor), take any action that is, or in contemplation or furtherance of, any Insolvency Action; (j) voluntarily seek, cause or take any action to effect its dissolution or liquidation; (k) assert that this Agreement or any other Loan Document, or any Lien arising thereunder, is not the legal, valid and binding obligation of such Person or any other party thereto; (l) sell, convey, voluntarily transfer or voluntarily encumber any Property or other Collateral other than in compliance with the provisions of this Agreement and the other Loan Documents; or (m) take any action, or fail to take any action, which materially prevents, delays or hinders the perfection of the Lien of the Agent in any portion or all of the Collateral.

Bad Acts. The Loan Parties will It shall not, and it shall not cause or permit any its subsidiaries, to: (a) misappropriate, misapply or convert any Collections, security deposits, or similar amounts derived from any of the following:Property; (ib) fraudfail to pay any homeowners association dues, malfeasancetaxes, gross negligenceassessments, willful misconductmunicipal or governmental rates, bad faith or intentional misrepresentation or the commission of any criminal act by (i) any Loan Partycharges, any Sponsor impositions, liens and water and sewer rents or any Affiliate part thereof, heretofore or hereafter imposed upon it or in respect of any Loan Party the Properties, as well as all similar claims which if unpaid might become a lien or any Sponsor in connection with the Facility, including any Advance or any Property or (ii) Property Manager, sub-manager, operator or entity engaged by charge upon a Loan Party in connection with the rental, management or operation of any Property, excepting criminal acts by Property Manager, a sub-manager, operator or entity that do not relate to this FacilityBorrower, any Property or any other item constituting Collateral or any part thereof (“HOA or Tax Amounts”), unless, in each case, the ability of any such party to perform its obligations under the Loan Documents or that same are otherwise immaterial; (ii) any material physical waste of any Financed Property; (iii) the imposition of any consensual Lien or other encumbrance on any Property other than that which is expressly permitted under the terms of this Agreement; (iv) to the extent of available cash flow from the Properties, failure to pay charges for labor or materials or other charges or judgments that can create Liens or other encumbrance on any portion of any Property other than that which is expressly permitted under the terms of this Agreement; (v) to the extent of available cash flow from the Properties, failure by any Loan Party to pay Taxes (except those Taxes which not delinquent and are being contested in good faith by appropriate proceedings diligently conducted and for which adequate appropriate reserves are maintained have been established in accordance with GAAP, but only to the extent of: (x) Collections received with respect to the Properties and funds in the Insurance and Tax Reserve AccountAccount available to pay such HOA or Tax Amounts; and (y) amounts distributed to the Borrowers or Borrower Representative pursuant to Section 2.8(b)(xiii) of the Credit Agreement as a result of a failure to include in the Insurance and Tax Reserve Account Required Amounts sufficient amounts for HOA or Tax Amounts, whether such failure resulted from a miscalculation or otherwise (and for avoidance of doubt, unpaid HOA or Tax Amounts shall constitute losses under this subsection (ii), but only to the result extent of which creates a Lien on (x) and (y) above); (c) remove and fail to replace (with personal property of the same utility and of similar value) any fixtures, equipment, and/or other articles of personal property owned by it and attached as fixtures to, or used as fixtures in connection with, any Property owned by it, except for removal of obsolete or unnecessary fixtures in the ordinary course of maintaining and renovating such Property; (d) misapply, misappropriate or convert or permit, to the extent of its power, any of its Affiliates to misappropriate, misapply or convert of any Insurance Proceeds, construction proceeds, Condemnation Proceeds, Conveyance Proceeds, any amounts withdrawn from the Ongoing Reserve Account for the payment of Qualified Expenses or Excess Expenses, any amounts withdrawn from the Insurance and Tax Reserve Account for the payment of any real property taxes or assessments or insurance premiums, any amounts withdrawn from the Renovation Cost Reserve Account for the payment of renovation costs, any amounts withdrawn from the Insurance Proceeds Account for the payment of costs and expenses of repairs to any related Property, any amounts withdrawn from the Flood Damage Reserve Account for the payment of costs and expenses of repairs to any related flood damage Property and/or security deposits affecting any Property; (vie) commit any act(s) of actual waste on or with respect to any Property owned by it; (f) to the extent of available cash flow from Collections received with respect to the Properties, failure to meet Properties and funds in the Insurance Requirement and Tax Reserve Account available therefore, fail to maintain insurance with respect to any Loan Party Property owned by it or any Property; (vii) the theft, misappropriation or conversion or other failure to remit (to the extent otherwise as required by the Loan Documents) by any Borrower-Related Party of (A) any Insurance Proceeds paid by reason of any casualty or under any insurance policy, (B) any Condemnation Proceeds, (C) any Conveyance Proceeds or refinancing proceeds to the Collection Account or (D) any other Available Funds or other amounts required to be deposited into any Collection Account, Reserve Account, or any other account established and maintained pursuant to in this Agreement; (viiig) except as otherwise required by Applicable Law, the failure directly or indirectly transfer title to deliver security deposits to the Security Deposit Accountits Equity Interests; (ixh) a breach by engage in any Loan Party of any “special purpose entity” fraud, willful misconduct or separateness obligation set forth intentional misrepresentation in connection with this Agreement or any other Loan Document; (i) without the prior written consent of the owner of its Equity Interest (the Trust Guarantor, which consent shall be granted only upon prior written consent of the holder of the Equity Interest in the Trust Guarantor), take any action that is, or in contemplation or furtherance of, any Insolvency Action; (j) voluntarily seek, cause or take any action to effect its dissolution or liquidation; (k) assert that this Agreement or any other Loan Document, or any Lien arising thereunder, is not the legal, valid and binding obligation of such Person or any other party thereto; (l) sell, convey, voluntarily transfer or voluntarily encumber any Property or other Collateral other than in compliance with the provisions of this Agreement and the other Loan Documents; or (m) take any action, or fail to take any action, which materially prevents, delays or hinders the perfection of the Lien of the Agent in any portion or all of the Collateral.