Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower and Guarantor shall be liable for the payment, in accordance with the terms of this Agreement, the Note, the Security Instrument and the other Loan Documents, to Lender of: (a) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of (i) the fraudulent acts of or intentional misrepresentations by Borrower or any Affiliate of Borrower and/or (ii) the failure of Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal Requirements; (b) Proceeds which Borrower or any Affiliate of Borrower has received and to which Lender is entitled pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with the provisions of this Agreement; (c) any membership deposits and any security deposits and advance deposits which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreement, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof; (d) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of all or any part of the Property, the Account Collateral or the Rate Cap Collateral being encumbered by a Lien (other than this Agreement and the Security Instrument) in violation of the Loan Documents; (e) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income collected by Borrower, Operating Lessee or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables sent to the applicable Deposit Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companies) and not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan Documents; (f) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of physical damage to the Property from intentional waste committed by Borrower or any Affiliate of Borrower; (g) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document; (h) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to comply with any of the provisions of Article XIV; (i) if Borrower fails to obtain Lender’s prior written consent to any Transfer, if and as required by the Loan Agreement or the Security Instrument; (j) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that (x) Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Property, the Account Collateral or the Rate Cap Collateral or any part thereof which is found by a court to have been raised by Borrower or Operating Lessee in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is commenced against Borrower or Operating Lessee under the Bankruptcy Code with the collusion of Borrower or Operating Lessee, Guarantor or any of their Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors of Borrower has a fiduciary duty to seek such an order for relief; (k) any actual loss, damage, cost, or expense incurred by or on behalf of Lender by reason of Borrower, Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose Entity; and (l) reasonable attorney’s fees and expenses incurred by Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (k).
Appears in 2 contracts
Samples: Loan and Security Agreement (Strategic Hotels & Resorts, Inc), Loan and Security Agreement (Strategic Hotels & Resorts, Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents (Mezzanine) to the contrary, Borrower and Guarantor there shall at no time be liable any limitation on Mezzanine Borrower’s or Guarantor’s liability for the payment, in accordance with the terms of this Agreement, the Mezzanine Note, the Security Instrument Pledge and the other Loan DocumentsDocuments (Mezzanine), to Mezzanine Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of (i) the fraudulent acts of Mezzanine Borrower or intentional misrepresentations by Mezzanine Borrower or any Affiliate of Mezzanine Borrower and/or (ii) the failure of Mortgage Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal Requirements;
(b) Proceeds which Mortgage Borrower, any Affiliate of Mortgage Borrower, Mezzanine Borrower or any Affiliate of Mezzanine Borrower has received and to which Lender Xxxxxxxxx Xxxxxx is entitled pursuant to the terms of this Agreement or any of the Loan Documents (Mezzanine) to the extent the same have not been applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with the provisions of this AgreementLoan Agreement (Mortgage);
(c) any membership deposits and any security deposits and advance deposits which are not delivered to Mortgage Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreement, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(d) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of all or any part of the Property, the Account Collateral or the Rate Cap Collateral being encumbered by a Lien (other than this Agreement and the Security Instrument) in violation of the Loan Documents;
(e) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income collected by Borrower, Operating Lessee or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables sent to the applicable Deposit Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companies) and not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan Documents;
(f) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of physical damage to the Property from intentional waste committed by Borrower or any Affiliate of Borrower;
(g) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(h) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to comply with any of the provisions of Article XIV;
(i) if Borrower fails to obtain Lender’s prior written consent to any Transfer, if and as required by the Loan Agreement or the Security Instrument;
(j) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that (x) Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Property, the Account Collateral or the Rate Cap Collateral or any part thereof which is found by a court to have been raised by Borrower or Operating Lessee in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is commenced against Borrower or Operating Lessee under the Bankruptcy Code with the collusion of Borrower or Operating Lessee, Guarantor or any of their Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors of Borrower has a fiduciary duty to seek such an order for relief;
(k) any actual loss, damage, cost, or expense incurred by or on behalf of Lender by reason of Borrower, Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose Entity; and
(l) reasonable attorney’s fees and expenses incurred by Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (k).
Appears in 2 contracts
Samples: Mezzanine Loan and Security Agreement (Strategic Hotels & Resorts, Inc), Mezzanine Loan and Security Agreement (Strategic Hotels & Resorts, Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the other Loan Documents to the contrary, Borrower and Guarantor there shall at no time be liable any limitation on Borrower’s, Maryland Loan Guarantor’s or, except as set forth in the Recourse Guaranty, Guarantor’s liability for the payment, in accordance with the terms of this Agreement, the NoteNotes, the Security Instrument and the other Loan Documents, to Lender ofof and for:
(a) any actual out-of-pocket loss, damage, cost or expense cost, expense, liability, claim and any other obligation incurred by or on behalf of Lender by reason of (i) the fraudulent acts arising out of or in connection with fraud or intentional misrepresentations material misrepresentation by Borrower Borrower, Maryland Loan Guarantor, Master Lessee, Guarantor or any Affiliate of Borrower and/or (ii) their principals, officers, agents or employees in connection with the failure of Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal RequirementsLoan;
(b) Proceeds which Borrower or any Affiliate of Borrower has received and to which Lender is entitled pursuant damage to the terms Property arising from intentional misconduct of this Agreement Borrower, Maryland Loan Guarantor, Master Lessee, Guarantor or any of the Loan Documents to the extent the same have not been applied toward payment of the Indebtednesstheir principals, officers, agents or used for the repair or replacement of the Property in accordance with the provisions of this Agreement;
(c) any membership deposits employees, and any security deposits and advance deposits which are not delivered to Lender upon a foreclosure removal of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions assets forming part of any of the Leases Individual Property by Borrower, Maryland Loan Guarantor or membership agreement, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(d) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of all or any part of the Property, the Account Collateral or the Rate Cap Collateral being encumbered by a Lien (other than this Agreement and the Security Instrument) Master Lessee in violation of the Loan Documents;
(e) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income collected by Borrower, Operating Lessee or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables sent to the applicable Deposit Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companies) and not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan Documents;
(fc) any actual out-of-pocket loss, damage, cost or expense cost, expense, liability, claim and any other obligation incurred by or on behalf of Lender by reason arising out of physical damage to the Property from intentional waste committed by Borrower or any Affiliate of Borrower;
(g) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of in connection with the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument herein concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentthe Environmental Indemnity or herein, but only to the extent that the same are not insured against by an Environmental Insurance Policy;
(hd) the amount of any misappropriation or conversion by Borrower, Maryland Loan Guarantor or Master Lessee of (A) any Proceeds paid by reason of any casualty, damage or destruction of the Property, (B) any Proceeds received in connection with a Taking, (C) any Rents following and during the continuance of an Event of Default, or (D) any Rents paid more than one (1) month in advance (it being agreed that no use of funds for the repair, maintenance or operations of the Property shall be treated as a “misappropriation” hereunder);
(e) any actual out-of-pocket loss, damage, cost or expense cost, expense, liability, claim and any other obligation incurred by or on behalf of Lender by reason arising out of the failure or in connection with a breach of Borrower to comply with any of the provisions of Article XIVrepresentation set forth in Section 4.1.29;
(if) if Borrower fails any actual out-of-pocket loss, damage, cost, expense, liability, claim and any other obligation incurred by or on behalf of Lender arising out of or in connection with Borrower’s or Maryland Loan Guarantor’s failure to obtain Lender’s prior written consent to any Transfer, if and Debt or voluntary Lien encumbering the Property as required by the Loan this Agreement or by the Security InstrumentInstruments;
(jg) any actual out-of-pocket loss, damage, cost, expense, liability, claim and all liabilities, obligations, losses, damages, costs and expenses any other obligation incurred by or on behalf of Lender (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that (x) Borrower or Maryland Loan Guarantor should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Property, any Individual Property or the Account Collateral or the Rate Cap Collateral or any part thereof which is found by a court of competent jurisdiction in a final, unappealable decision to have been raised by Borrower or Operating Lessee Maryland Loan Guarantor in bad faith or to be wholly without basis in fact or law;
(h) any actual out-of-pocket loss, damage, cost, expense, liability, claim and any other obligation incurred by or on behalf of Lender arising out of or in connection with (yA) an involuntary case is commenced against any Borrower or Operating Lessee Maryland Loan Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) any Borrower or Maryland Loan Guarantor soliciting or causing to be solicited petitioning creditors for an involuntary petition against any Borrower or Maryland Loan Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or an involuntary case being commenced against any Borrower or Maryland Loan Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law with the collusion of any Individual Borrower or Operating Lessee, Maryland Loan Guarantor or any of their Affiliates or its Affiliates, (zC) an order for relief is entered with respect to the any Borrower or Operating Lessee Maryland Loan Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code through the actions of the or any other Federal or state bankruptcy or insolvency law; (D) any Borrower or Operating LesseeMaryland Loan Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for any such Borrower or Maryland Loan Guarantor or any portion of their Affiliates at a time when the Property; (E) any Borrower is able or Maryland Loan Guarantor making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors of Borrower has a fiduciary duty to seek such an order for reliefdue;
(ki) any actual out-of-pocket loss, damage, cost, or expense expense, liability, claim and any other obligation incurred by or on behalf of Lender arising out of or in connection with any Borrower’s or Maryland Loan Guarantor’s failure to obtain Lender’s prior written consent to any Transfer as required by reason of Borrower, Operating Lessee, the Loan Agreement or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose EntitySecurity Instruments; andor
(lj) reasonable attorney’s fees and expenses incurred by Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (ki). Notwithstanding the foregoing provisions of this Section 18.1.2, Borrower and Maryland Loan Guarantor shall not be liable for the payment of any such costs and expenses to the extent that a court of competent jurisdiction determines in a final decision that the same arose by reason of the gross negligence, criminal acts, fraud or willful misconduct of Lender.
Appears in 2 contracts
Samples: Loan and Security Agreement (BlueLinx Holdings Inc.), Loan and Security Agreement (BlueLinx Holdings Inc.)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower and Guarantor there shall at no time be liable any limitation on Borrower's or, to the extent provided in the Recourse Guaranty, Guarantor's liability for the payment, in accordance with the terms of this Agreement, the Note, the Security Instrument and the other Loan Documents, to Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of (i) the fraudulent acts of or intentional misrepresentations by Borrower or any Affiliate of Borrower and/or (ii) the failure of Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal RequirementsBorrower;
(b) Proceeds which Borrower or any Affiliate of Borrower has received and to which Lender is entitled pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with the provisions of this Agreement;
(c) all loss, damage, cost or expense incurred by Lender and arising from any membership deposits and intentional misrepresentation of Borrower or any security deposits and advance deposits which are not delivered to Lender upon a foreclosure Affiliate of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreement, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofBorrower;
(d) any misappropriation of Surrender Fees or Security Deposits by any Manager, Borrower or any Affiliate of Borrower;
(e) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of all or any part of the Property, the Account Collateral or the Rate Cap Collateral being encumbered by a any voluntary Lien (other than this Agreement and the Security Instrument) in violation of the Loan Documents;
(ef) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income Rents collected by Borrower, Operating Lessee Borrower or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables Rent sent to the applicable Deposit Collection Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companiesin accordance with its direction) and not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan Documents;
(f) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of physical damage to the Property from intentional waste committed by Borrower or any Affiliate of Borrower;
(g) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of any physical damage to the breach Property from intentional waste committed by Borrower or any Affiliate of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentBorrower;
(h) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of any Transfer of the failure Property or direct or indirect interests in Borrower in violation of Borrower to comply with any of the provisions of Article XIVVIII;
(i) if Borrower fails to obtain Lender’s prior written consent to any Transfer, if and as required by the Loan Agreement or the Security Instrument;
(j) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ ' fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that (x) Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Property, the Account Collateral or the Rate Cap Collateral or any part thereof which is found by a court to have been raised by Borrower or Operating Lessee in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is commenced against Borrower or Operating Lessee under the Bankruptcy Code with the collusion of Borrower or Operating Lessee, Guarantor or any of their its Affiliates or (zy) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their its Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors members of Borrower has have a fiduciary duty to seek such an order for relief;; or 109
(kj) any actual loss, damage, cost, cost or expense incurred by or on behalf of Lender by reason of Borrowerthe failure of Borrower to comply with any of the provisions of Section 5.1.4 or 5.1.5 which result in a consolidation of any SPE Entity with a non-SPE Entity, Operating Lessee, other than any provision which requires Borrower to maintain adequate capitalization or their respective general partners failing prohibits Borrower from causing another Person to be and have been since become insolvent unless such Person becomes insolvent by reason of the date failure of its respective formation, a Single Purpose Entity; andBorrower to comply with any of the other provisions of Section 5.1.4 or 5.1.5.
(lk) reasonable attorney’s 's fees and expenses incurred by Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (kj).
Appears in 2 contracts
Samples: Loan and Security Agreement (Reckson Associates Realty Corp), Loan and Security Agreement (Reckson Operating Partnership Lp)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower and Guarantor there shall at no time be liable any limitation on Borrower’s or Guarantor’s liability for the payment, in accordance with the terms of this Agreement, the Note, the Security Instrument and the other Loan Documents, to Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of (i) the fraudulent acts of or intentional misrepresentations by Borrower or any Affiliate of Borrower and/or (ii) the failure of Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal Requirements;
(b) Proceeds which Borrower or any Affiliate of Borrower has received and to which Lender is entitled pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with the provisions of this Agreement;
(c) any membership deposits and any security deposits and advance deposits which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreement, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(d) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of all or any part of the Property, the Account Collateral or the Rate Cap Collateral being encumbered by a Lien (other than this Agreement and the Security Instrument) in violation of the Loan Documents;
(e) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income collected by Borrower, Operating Lessee or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables sent to the applicable Deposit Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companies) and not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan Documents;
(f) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of physical damage to the Property from intentional waste committed by Borrower or any Affiliate of Borrower;
(g) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(h) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to comply with any of the provisions of Article XIV;
(i) if Borrower fails to obtain Lender’s prior written consent to any Transfer, if and as required by the Loan Agreement or the Security Instrument;
(j) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that (x) Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Property, the Account Collateral or the Rate Cap Collateral or any part thereof which is found by a court to have been raised by Borrower or Operating Lessee in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is commenced against Borrower or Operating Lessee under the Bankruptcy Code with the collusion of Borrower or Operating Lessee, Guarantor or any of their its Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their its Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors of Borrower has a fiduciary duty to seek such an order for relief;
(k) any actual loss, damage, cost, or expense incurred by or on behalf of Lender by reason of Borrower, Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose Entity; and
(l) reasonable attorney’s fees and expenses incurred by Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (k).
Appears in 2 contracts
Samples: Loan and Security Agreement (Strategic Hotels & Resorts, Inc), Loan and Security Agreement (Strategic Hotels & Resorts, Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower and Guarantor shall be liable for the payment, in accordance with the terms of this Agreement, the Note, the Security Instrument and the other Loan Documents, to Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of or in connection with (i) the fraudulent acts of or intentional misrepresentations by Borrower or any Affiliate of Borrower and/or (ii) the failure of Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal RequirementsRequirements and/or (iii) the Outstanding Manager Issues;
(b) Proceeds which Borrower or any Affiliate of Borrower has received and to which Lender is entitled pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with the provisions of this Agreement;
(c) any membership deposits and any security deposits and advance deposits which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreement, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(d) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of all or any part of the Property, the Account Collateral or the Rate Cap Collateral being encumbered by a Lien (other than this Agreement and the Security Instrument) in violation of the Loan Documents;
(e) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income collected by Borrower, Operating Lessee or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables sent to the applicable Deposit Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companies) and not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan Documents;
(f) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of physical damage to the Property from intentional waste committed by Borrower or any Affiliate of Borrower;
(g) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(h) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to comply with any of the provisions of Article XIV;
(i) if Borrower fails to obtain Lender’s prior written consent to any Transfer, if and as required by the Loan Agreement or the Security Instrument;
(j) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that (x) Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Property, the Account Collateral or the Rate Cap Collateral or any part thereof which is found by a court to have been raised by Borrower or Operating Lessee in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is commenced against Borrower or Operating Lessee under the Bankruptcy Code with the collusion of Borrower or Operating Lessee, Guarantor or any of their Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors of Borrower has a fiduciary duty to seek such an order for relief;
(k) any actual loss, damage, cost, or expense incurred by or on behalf of Lender by reason of Borrower, Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose Entity; and
(l) reasonable attorney’s fees and expenses incurred by Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (k).
Appears in 2 contracts
Samples: Loan and Security Agreement (Strategic Hotels & Resorts, Inc), Loan and Security Agreement (Strategic Hotels & Resorts, Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower and Guarantor there shall at no time be liable any limitation on Borrower’s or any Guarantor’s liability for the payment, in accordance with the terms of this Agreement, the NoteNotes, the Security Instrument Instruments and the other Loan Documents, to Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of (i) the fraudulent acts of or intentional misrepresentations by Borrower or any Affiliate of Borrower and/or (ii) the failure of Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal RequirementsBorrower;
(b) Proceeds which Borrower or any Affiliate of Borrower has received and to which Lender is entitled pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with the provisions of this Agreement;
(c) all loss, damage, cost or expense as incurred by Lender and arising from any membership deposits and intentional misrepresentation of Borrower or any security deposits and advance deposits which are not delivered to Lender upon a foreclosure Affiliate of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreement, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofBorrower;
(d) any misappropriation of Rents or security deposits or other funds relating to the Properties by Master Lessee, Borrower or any of their respective Affiliates;
(e) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of all or any part of the Property, the Account Collateral or the Rate Cap Protection Collateral being encumbered by a Lien or Transferred by reason of the acts of Borrower or any Affiliate of Borrower from and after the Closing Date (other than this Agreement and the Security InstrumentInstruments) in violation of the Loan Documents;
(ef) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income from the Property collected by Borrower, Operating Lessee Borrower or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables Rent sent to the applicable Deposit Holding Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companiesProperty) and not applied to payment of the Indebtedness or the Obligations or used to pay normal and verifiable Operating Expenses operating expenses of the Property or otherwise applied in a manner permitted under the Loan Documents;
(f) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of physical damage to the Property from intentional waste committed by Borrower or any Affiliate of Borrower;
(g) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of physical damage to the breach Property from intentional waste or other willful destruction (other than in connection with a permitted alteration) committed by Borrower or any Affiliate of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentBorrower;
(h) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to comply with any of the provisions of Article XIVXII;
(i) if Borrower fails to obtain Lender’s prior written consent to any Transferloss, if and as required damage, cost or expense incurred by the Loan Agreement or the Security Instrumenton behalf of Lender by reason of any breach of a representation set forth in Section 4.1.30 or any covenant set forth in Section 5.1.4 or Section 5.2.22;
(j) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to deliver to Lender the net sales proceeds of a Transfer of an Individual Property described in Section 2.3.4 together with any shortfall necessary to pay in full the Release Price for such Individual Property, in accordance with the provisions of Section 2.3.4;
(k) all of the Indebtedness and the Obligations in the event of: (i) any Borrower Party or any Master Lessee Party filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (ii) any Borrower Party or Master Lessee Party filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited, or colluding with (or any of such Borrower Party’s or Master Lessee Party’s Affiliates colluding with) petitioning creditors to file any such involuntary petition from any Person; (iii) any Borrower Party or Master Lessee Party consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for any Borrower Party or Master Lessee Party or any portion of the Property; (iv) any Borrower Party or Master Lessee Party making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, that it is insolvent;
(l) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that (x) Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Property, the Account Collateral or the Rate Cap Protection Collateral or any part thereof which is found by a court to have been raised by Borrower or Operating Lessee in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is commenced against Borrower or Operating Lessee under the Bankruptcy Code with the collusion of Borrower or Operating Lessee, Guarantor or any of their Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors of Borrower has a fiduciary duty to seek such an order for relief;; or
(k) any actual loss, damage, cost, or expense incurred by or on behalf of Lender by reason of Borrower, Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose Entity; and
(lm) reasonable attorney’s fees and expenses actually incurred by Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (kl).
Appears in 1 contract
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower and Guarantor there shall at no time be liable any limitation on Borrower's or Guarantor's liability for the payment, in accordance with the terms of this Agreement, the Note, the Security Instrument and the other Loan Documents, to Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of (i) the fraudulent acts of or intentional misrepresentations by Borrower or any Affiliate of Borrower and/or (ii) the failure of Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal RequirementsBorrower;
(b) Proceeds which Borrower or any Affiliate of Borrower has received and to which Lender is entitled pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with the provisions of this Agreement;
(c) any membership deposits held in the Membership Deposit Account as of the date hereof and the Grand Wailea Refund Reserve Account and any security deposits Security Deposits and advance deposits except as set forth in Section 18.1.2(o), and specifically excluding membership deposits which are not held in (i) the Membership Deposit Account as of the date hereof or (ii) the Grand Wailea Refund Reserve Account] which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such membership deposits, Security Deposits or advance deposits were applied or refunded in accordance with the terms and 146 conditions of any of the Leases or membership agreementMembership Agreements, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(d) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of all or any part of the Property, Property or the Account Collateral or the Rate Cap Collateral being encumbered by a Lien (other than this Agreement and the Security Instrument) in violation of the Loan Documents;
(e) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income collected by Borrower, Operating Lessee Borrower or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables sent to the applicable Deposit Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companies) and not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan Documents;
(f) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of physical damage to the Property from intentional waste committed by Borrower or any Affiliate of Borrower;
(g) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(h) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to comply with any of the provisions of Article XIV, specifically excluding any loss, cost, damages or expense incurred by or on behalf of Lender in connection with a Securitization attributable to any delay in furnishing the items described in the Post Closing Letter, or the state of facts disclosed by the delivery of the items described in the Post Closing Letter;
(i) if Borrower fails to obtain Lender’s 's prior written consent to any Transfer, if and as required by the Loan Agreement or the Security Instrument;
(j) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of (i) Borrower's breach of any term or terms of the Doral Settlement Agreement (provided Lender, may in its sole but reasonable discretion, enter into a separate written agreement with Borrower limiting the liability arising with respect to the Doral Settlement Agreement to a specific dollar amount based upon documentation delivered to Lender that indicates the aggregate cost to complete all of the work set forth in the Doral Settlement Agreement (provided, it is further agreed that such amount will also include all potential fines, penalties and future settlement amounts that may arise relating to the Doral Settlement Agreement)), (ii) the failure of Borrower to comply with its obligations under Section 16.3 hereof (subject to a cap of liability in an amount equal to $178,938), (iii) the personal injury matter relating to Xxxx Xxxxxxxxx and the matters identified as items 1, 5, 6, 8 and 12 on attached Schedule I (provided, Lender may agree in writing to reduce any or all of the liability under this clause (iv) based upon its review of any 147 documents delivered to Lender) and/or (v) the failure of Borrower to have a valid certificate of occupancy for any Property (or portion thereof) that is required under applicable Legal Requirements;
(k) any loss, damage, cost or expense incurred by or on behalf of Lender relating to the liability, if any, of the Borrower owning the Desert Property under indemnities it gave in connection with the land sales to Toll Bros., Inc. and to the La Quinta Redevelopment Agency;
(l) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ ' fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that (x) Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Property, the Account Collateral or the Rate Cap Collateral Collateral, or any part thereof which is found by a court to have been raised by Borrower or Operating Lessee in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is commenced against Borrower or Operating Lessee under the Bankruptcy Code with the collusion of Borrower or Operating Lessee, Guarantor or any of their its Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their its Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors of Borrower has have a fiduciary duty to seek such an order for relief;
(km) any actual loss, damage, cost, cost or expense incurred by or on behalf of Lender solely and as a direct result of unfunded membership deposit refund liabilities under the membership program in which Grand Wailea Refund Members participate under the applicable Membership Agreements in effect at any time up to the date, if applicable, that Lender forecloses on or accepts a deed in lieu of foreclosure of the Grand Wailea Property;
(n) any loss, damage, cost or expense incurred by reason or on behalf of Borrower, Operating Lessee, Lender as a result of any of the assumptions related to pre-existing entities or their respective general partners failing status as single-purposes entities or their compliance with single purpose entity criteria prior to be and have been since the date of its respective formationthis Agreement, a Single Purpose Entitycontained in the Non-Consolidation Opinion, in any Additional Non-Consolidation Opinion or in any other non-consolidation opinion delivered to Lender in connection with the Loan, or in any other non-consolidation delivered subsequent to the closing of the Loan, is or shall become untrue in any material respect; and
(lo) reasonable attorney’s 's fees and expenses incurred by Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (kn).
Appears in 1 contract
Samples: Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower and Guarantor there shall at no time be liable any limitation on Borrower’s (or, to the extent provided in the Recourse Guaranty, Sponsor’s) liability for the payment, in accordance with the terms of this Agreement, the Note, the Security Instrument and the other Loan Documents, to Lender of its actual out-of:
-pocket (abut not its consequential, special or punitive damages) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of as a result of:
(ia) the fraudulent acts of or intentional misrepresentations by Borrower or any Affiliate of Borrower and/or (ii) the failure of Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal RequirementsBorrower;
(b) Proceeds which Borrower or any Affiliate of Borrower has received and to which Lender is entitled pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with this Agreement or otherwise applied in a manner permitted by this Agreement or the provisions of this Agreementother Loan Documents;
(c) any membership deposits and any security deposits and advance deposits which are not delivered to Lender upon a foreclosure Borrower’s, Manager’s, Sponsor’s, or their Affiliates’, removal or disposal of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreement, as applicable, prior to after the occurrence and during the continuance of the an Event of Default that gave rise to such foreclosure or action in lieu thereofDefault;
(d) any lossintentional misrepresentation of Borrower or any Affiliate of Borrower;
(e) any misappropriation of Rents, damagesecurity deposits, cost issues, profits and/or income by Manager, Borrower, Sponsor or expense incurred by or on behalf any of Lender by reason of their Affiliates;
(f) all or any part of the Property, the Account Collateral or the Rate Cap Collateral Property being encumbered by a Lien (other than this Agreement and or the Security Instrument) intentionally granted by Borrower in violation of the Loan DocumentsDocuments through the execution of an instrument or agreement;
(eg) after the occurrence and during the continuance of an Event of DefaultDefault by Borrower hereunder or under any other Loan Document, any Rents, issues, profits and/or income collected by Borrower, Operating Lessee or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables sent to the applicable Deposit Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companies) Sponsor and not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan Documents;
(fh) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of physical damage to the Property from intentional waste committed by Borrower or any Affiliate of Borrower;
(g) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(h) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to comply with any of the provisions of Article XIV;
(i) if Borrower fails to obtain Lender’s prior written consent to any Transfer, if and as required by the Loan Agreement or the Security Instrument;
(j) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that (x) Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Property, the Account Collateral or the Rate Cap Collateral or any part thereof which is found by a court to have been raised by Borrower or Operating Lessee in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is being commenced against Borrower or Operating Lessee under the Bankruptcy Code with the collusion of Borrower or Operating Lessee, Guarantor or any of their its Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their its Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor Sponsor shall have received an opinion of independent counsel that the directors managing member of Borrower has a fiduciary duty to seek such an order for relief;
(j) if Borrower or its Affiliates fail to obtain Lender’s prior written consent to any Transfer or additional Debt, as required by the Loan Agreement or the Security Instrument;
(k) the failure of Borrower to comply with any actual loss, damage, cost, or expense incurred by or on behalf of Lender by reason the provisions of Borrower, Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose EntityArticle XII; and
(l) reasonable attorney’s fees and expenses incurred by Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (kl).
Appears in 1 contract
Samples: Loan and Security Agreement (Hudson Pacific Properties, Inc.)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower and Guarantor there shall at no time be liable any limitation on Borrower’s or any Recourse Guarantor’s liability for the payment, in accordance with the terms of this Agreement, the Note, the Security Instrument Collateral Documents and the other Loan DocumentsDocuments and the Specified Interest Rate Contracts, to Lender Administrative Agent and the Secured Parties of:
(a) any loss, damage, cost or expense incurred or suffered by or on behalf of Lender the Secured Parties by reason of (i) any termination, cancellation, rejection, surrender, amendment, modification or subordination of the fraudulent acts of or intentional misrepresentations by Borrower Ground Lease (or any Affiliate of Borrower and/or portion thereof) or the Option Agreement, in each instance without Administrative Agent’s prior consent, or (ii) any breach of the failure of Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all representations set forth in Sections 4.29 or 4.31 or any portion covenant set forth in Sections 5.18 or 5.20 (provided that the provisions of this Section 9.2(a) shall exclude, and Recourse Guarantor shall not have any liability for, any loss, damage, cost or expense incurred or suffered by the Property if and Secured Parties solely by reason of (A) any accelerated rent or damages payable to the extent such certificate Ground Lease Fee Owner by reason of occupancy(sa default under any Ground Lease, or (B) is required Borrower’s or Leasehold Holder’s failure to comply pay the purchase option price payable in connection with all Legal Requirementsthe exercise of any Ground Lease Parcel Purchase Option or the purchase of any Option Parcels pursuant to the Option Agreement);
(b) Proceeds which Borrower or any Affiliate of Borrower has received and to which Lender is entitled pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with the provisions of this Agreement;
(c) any membership deposits and any security deposits and advance deposits which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreement, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(d) any loss, damage, cost or expense incurred by or on behalf of Lender the Secured Parties by reason of all the fraudulent acts of any Loan Party or any part Affiliate thereof;
(c) Proceeds which a Loan Party or any Affiliate thereof has received and to which Administrative Agent and/or the Secured Parties are entitled pursuant to the terms of the Property, the Account Collateral or the Rate Cap Collateral being encumbered by a Lien (other than this Agreement and the Security Instrument) in violation or any of the Loan DocumentsDocuments or the Specified Interest Rate Contracts to the extent the same have not been applied toward payment of the Obligations, or used for the repair or replacement of the Mortgaged Property in accordance with the provisions of this Agreement;
(d) all loss, damage, cost or expense as incurred by Administrative Agent and/or the Secured Parties and arising from any intentional misrepresentation of any Loan Party or any Affiliate thereof;
(e) after any misappropriation of Rents or other funds relating to the occurrence and during the continuance of an Event of Default, Mortgaged Properties by any Rents, issues, profits and/or income collected by Borrower, Operating Lessee Loan Party or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables sent to the applicable Deposit Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companies) and not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan Documentstheir Affiliates;
(f) any loss, damage, cost or expense incurred by or on behalf of Lender the Secured Parties by reason of physical damage to all or any part of the Property from intentional waste committed Mortgaged Property, the Collateral or the Rate Contract Collateral being encumbered by Borrower a Lien or Transferred by reason of the acts of any Loan Party or any Affiliate thereof from and after the Effective Date (other than this Agreement and the Collateral Documents) in violation of Borrowerthe Loan Documents;
(g) after the occurrence and during the continuance of an Event of Default, any lossrents, damageissues, cost profits and/or income from the Mortgaged Property collected by Borrower, the Leasehold Holder or expense incurred by or on behalf any Affiliate thereof (other than rent paid directly to Administrative Agent pursuant to any notice of Lender by reason direction delivered to tenants of the breach Mortgaged Property) and not applied to payment of any representation, warranty, covenant the Obligations or indemnification provision used to pay normal and verifiable operating expenses of the Mortgaged Property or otherwise applied in a manner permitted under the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentLoan Documents;
(h) any loss, damage, cost or expense incurred by or on behalf of Lender the Secured Parties by reason of physical damage to the failure of Borrower to comply with Mortgaged Property from intentional waste or other willful destruction committed by Borrower, the Leasehold Holder or any of the provisions of Article XIVAffiliate thereof;
(i) if Borrower fails to obtain Lender’s prior written consent to any Transfer, if and as required by the Loan Agreement or the Security Instrumentintentionally omitted;
(j) any loss, damage, cost or expense incurred by or on behalf of the Secured Parties by reason of any breach of a representation set forth in Section 4.23 or any covenant set forth in Section 5.13;
(k) all of the Obligations in the event of: (i) any Borrower Party filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (ii) any Borrower Party filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited, or colluding with (or any of such Borrower Party’s Affiliates colluding with) petitioning creditors to file any such involuntary petition from any Person; (iii) any Borrower Party consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for any Borrower Party or any portion of the Collateral; (iv) any Borrower Party making an assignment for the benefit of creditors, or admitting in writing in any legal proceeding described in (k)(i) through (k)(iv) that it is insolvent;
(l) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against LenderAdministrative Agent and/or the Secured Parties, in the event (and arising out of such circumstances) that (x) Borrower Borrower, Leasehold Holder or Holdco should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender Administrative Agent relative to the Property, the Account Collateral or the Rate Cap Contract Collateral or any part thereof which is found by a court to have been raised by Borrower or Operating Lessee such Loan Party in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is commenced against Borrower or Operating Lessee under the Bankruptcy Code with the collusion of Borrower or Operating Lessee, Guarantor or any of their Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors of Borrower has a fiduciary duty to seek such an order for relief;; or
(k) any actual loss, damage, cost, or expense incurred by or on behalf of Lender by reason of Borrower, Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose Entity; and
(lm) reasonable attorney’s fees and expenses actually incurred by Lender Administrative Agent and/or the Secured Parties in connection with any successful suit or other action filed or commenced on account of any of the foregoing clauses (a) through (kl).
Appears in 1 contract
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower there shall at no time be any limitation on any Guarantor’s liability for, and Guarantor and Borrower shall be jointly and severally liable for for, the payment, in accordance with the terms of this Agreement, the NoteNotes, the Security Instrument and the other Loan Documents, to Lender of:Administrative Agent and Lenders of the following (“Recourse Liabilities”):
(aA) any loss, damage, cost or expense Liabilities actually incurred by or on behalf of Administrative Agent or any Lender by reason of (i) the fraudulent acts of or intentional misrepresentations by Borrower or any Affiliate of Borrower and/or (including, without limitation, transfers from the Hotel Operating Account made in violation of Section 3.1.9) or (ii) the failure of Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal Requirements;
(bB) Proceeds which Borrower or any Affiliate of Borrower has actually received and to which Lender Administrative Agent is entitled pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with the provisions of this Agreement;
(cC) any membership deposits and any security deposits and advance deposits which are not delivered to Lender Administrative Agent upon a foreclosure of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreementLeases, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(dD) any loss, damage, cost or expense Liabilities actually incurred by or on behalf of Administrative Agent or any Lender by reason of all or any part of the Property, the Account Collateral, the IP Collateral or the Rate Cap Collateral being voluntarily encumbered by a Lien (other than (i) pursuant to this Agreement and the Security InstrumentInstrument or (ii) any Lien resulting by reason of the insufficiency of Net Operating Income to pay trade payables or Impositions or to discharge worker’s, mechanics’, materialmen’s or similar Liens, except where such insufficiency of Net Operating Income is due to a breach of the Loan Documents by any of the Transaction Parties) in violation of the Loan Documents;
(eE) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income collected by Borrower, Operating Lessee Borrower or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables sent to the applicable Deposit Account or paid directly to Lender Administrative Agent pursuant to any notice of direction delivered to tenants of the Property or credit card companies) and which are not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan Documents, in each case, as a result of the acts of Borrower or any Affiliate of Borrower;
(fF) any loss, damage, cost or expense Liabilities actually incurred by or on behalf of Administrative Agent or any Lender by reason of physical damage to the Property from intentional waste or willful destruction (other than in connection with a permitted alteration) committed by Borrower or any Affiliate of Borrower;
(gG) any actual loss, damage, cost or expense actually incurred by Administrative Agent or Lenders as a result of the removal or disposal of any collateral for the Loan during the continuation of an Event of Default other than in the Ordinary Course of Business;
(H) any actual loss, damage, cost or expense actually incurred by Administrative Agent or Lenders as a result of a violation of the provisions of Section 5.2.1 hereof, other than (i) de minimis violations of such provisions as a result of incurrence of trade payables or purchase money indebtedness in excess of the limitations thereon set forth in clauses (c) and (d) of the definition of Permitted Debt and (ii) any encumbrance resulting by reason of the insufficiency of Net Operating Income to pay trade payables or Impositions or to discharge worker’s, mechanics’, materialmen’s or similar Liens, except where such insufficiency of Net Operating Income is due to a breach of the Loan Documents by any of the Transaction Parties;
(I) any actual loss, damage, cost or expense actually incurred by or on behalf of Administrative Agent or any Lender as a result of any distribution in violation of the provisions of Section 5.2.13 hereof;
(J) any Liabilities incurred by or on behalf of Administrative Agent or any Lender by reason of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender Administrative Agent or any of Lenders with respect thereto in either document;
(hK) any loss, damage, cost or expense Liabilities incurred by or on behalf of Administrative Agent or any Lender by reason of the failure of Borrower to comply with any of the provisions of Article XIVXV;
(iL) if Borrower fails any Liabilities incurred by or on behalf of Administrative Agent or any Lender by reason of Borrower’s failure to obtain LenderAdministrative Agent’s prior written consent to any TransferTransfer (other than a Transfer set forth in clause (N)(ii) below), if and as required by the Loan Agreement or the Security InstrumentInstrument or any other violation of section 8.1 (other than any involuntary Transfer due to an encumbrance resulting by reason of the insufficiency of Net Operating Income to pay trade payables or Impositions or to discharge worker’s, mechanics’, materialmen’s or similar Liens, except where such insufficiency of Net Operating Income is due to a breach of the Loan Documents by any of the Transaction Parties);
(jM) any Liabilities incurred by or on behalf of Administrative Agent or any of Lenders by reason of Borrower’s failure to perform any of its obligations with respect to the Condominium Board, the Condominium Declaration, the Condominium Rules or Condominium Regime as set forth in Section 5.1.27 or if for any reason the Property or the land subject to the Condominium Declaration is withdrawn from condominium ownership; or if by reason of damage or destruction of all or any portion of the Improvements the Condominium Board or the owners of the Condominium Units do not duly and promptly resolve to proceed with the repair or restoration of the Improvements; or if by reason of the failure of Borrower to perform any act, as for example notification to the Condominium Board under the Condominium Declaration or the Condominium Rules, Administrative Agent shall not be entitled to the protective provisions under the Condominium Declaration or the Condominium Rules.
(N) all liabilities, obligations, losses, damages, costs of the Indebtedness and expenses the Obligations in the event of: (including, without limitation, reasonable attorneys’ fees, causes i) Borrower fails to obtain Administrative Agent’s prior consent to any subordinate financing secured by the Property or other voluntary Lien encumbering the Property; (ii) Borrower fails to obtain Administrative Agent’s prior consent to any Transfer of action, suits, claims, demands and adjustments the Property or any interest therein or any Transfer of any nature direct or description whatsoeverindirect ownership interest in Borrower, in either case as required by the Security Instrument or this Agreement (other than any involuntary Transfer due to an encumbrance resulting by reason of the insufficiency of Net Operating Income to pay trade payables or Impositions or to discharge worker’s, mechanics’, materialmen’s or similar Liens, except where such insufficiency of Net Operating Income is due to a breach of the Loan Documents by any of the Transaction Parties); (iii) Borrower files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (iv) Borrower is substantively consolidated with any other Person (other than any other Borrower or any subsidiary of any Borrower); unless such consolidation was involuntary and not consented to by Borrower or Guarantor; (v) the filing of an involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower colludes with or otherwise assists such Person, and/or Borrower solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower by any Person; (vi) Borrower files an answer consenting to, or otherwise acquiescing in, or joining in, any involuntary petition filed against it by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (vii) Borrower or any Affiliate, officer, director or representative controlled by Guarantor which controls Borrower consents to, or acquiesces in, or joins in, an application for the appointment of a custodian, receiver, trustee or examiner for Borrower or any portion of the Property; (viii) Borrower makes an assignment for the benefit of creditors or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; or (ix) if Guarantor (or any Person comprising Guarantor), Borrower or any Affiliate of any of the foregoing, in connection with any enforcement action or exercise or assertion of any right or remedy by or on behalf of Administrative Agent under or in connection with the Recourse Guaranty, the Notes, the Security Instrument or any other Loan Document, seeks a defense, judicial intervention or injunctive or other equitable relief of any kind, or asserts in a pleading filed in connection with a judicial proceeding any defense against Administrative Agent or any right in connection with any security for the Loan (except for a defense raised, or judicial intervention or injunctive or other equitable relief sought, by Borrower, Guarantor or any Affiliate of any of the foregoing in good faith on the grounds that the Event of Default giving rise to such enforcement action or exercise or assertion of a right or remedy by Administrative Agent has not occurred or that Administrative Agent’s exercise of remedies is not in accordance with applicable law or the Loan Documents);
(O) any Liabilities which may at any time be imposed upon, incurred by or awarded against Lender, Administrative Agent or any Lender in the event (and arising out of such circumstances) that (x) Borrower should raise any defense, counterclaim and/or or allegation in any foreclosure action by Lender Administrative Agent relative to the Property, the Account Collateral, the IP Collateral or the Rate Cap Collateral or any part thereof which is found by law (except for a court to have been raised by Borrower or Operating Lessee in bad faith or to be wholly without basis in fact or lawdefense raised, or (y) an involuntary case is commenced against Borrower judicial intervention or Operating Lessee under the Bankruptcy Code with the collusion of Borrower injunctive or Operating Lesseeother equitable relief sought, or a counterclaim or allegation asserted, by Borrower, Guarantor or any Affiliate of their Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions any of the Borrower or Operating Lessee, Guarantor or any of their Affiliates at a time when foregoing in good faith on the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel grounds that the directors Event of Borrower Default giving rise to such foreclosure action has a fiduciary duty to seek such an order for reliefnot occurred or that Administrative Agent’s exercise of remedies is not in accordance with Legal Requirements or the Loan Documents);
(kP) any actual loss, damage, cost, or expense Liabilities incurred by or on behalf of Administrative Agent or any Lender by reason of Borrower, Operating Lessee, Borrower or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose EntityEntity (other than as a result of (i) Borrower’s failure to maintain adequate capital or be or remain solvent, (ii) Borrower’s failure to pay any liability or indebtedness as it becomes due, provided such liability or indebtedness is not prohibited pursuant to the terms of the Loan Documents or (iii) involuntary liabilities incurred by Borrower);
(Q) during the continuance of a Cash Sweep Period, any Liabilities incurred by or on behalf of Administrative Agent or any Lender by reason of Borrower’s failure to apply funds received by Borrower pursuant to Section 3.1.6(iii) for the purpose such funds were transferred to Borrower; and
(lR) reasonable attorney’s fees and expenses incurred by Administrative Agent or any Lender in connection with any successful suit filed on account of any of the foregoing clauses (aA) through (kQ).
Appears in 1 contract
Samples: Loan and Security Agreement (Morgans Hotel Group Co.)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower and Guarantor there shall at no time be liable any limitation on Borrower’s or any Guarantor’s liability for the payment, in accordance with the terms of this Agreement, the Note, the Security Instrument and the other Loan Documents, to Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of (i) the fraudulent acts of or intentional misrepresentations by Borrower or any Affiliate of Borrower and/or (ii) the failure of Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal RequirementsBorrower;
(b) Proceeds which Borrower or any Affiliate of Borrower has received and to which Lender is entitled pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with the provisions of this AgreementAgreement or otherwise delivered to Lender;
(c) all loss, damage, cost or expense as incurred by Lender and arising from any membership deposits and intentional misrepresentation of Borrower or any security deposits and advance deposits which are not delivered to Lender upon a foreclosure Affiliate of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreement, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofBorrower;
(d) any misappropriation of Rents or security deposits by Borrower or any Affiliate of Borrower;
(e) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of all or any part of the Property, the Account Collateral or the Rate Cap Collateral being encumbered by a Lien (other than this Agreement and the Security Instrument) in violation of the Loan DocumentsDocuments (unless caused by the failure of Lender to apply funds held in the Tax Reserve Account pursuant to Section 16.1);
(ef) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income Rents collected by Borrower, Operating Lessee Borrower or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables Rent sent to the applicable Deposit Collection Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companiesProperty) and not delivered to Lender, applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan Documents;
(fg) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of physical damage to the Property from intentional waste committed by Borrower or any Affiliate of Borrower;
(gh) any loss, damage, cost or expense incurred by or on behalf the liability of Lender by reason of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentBorrower under Section 12.4;
(hi) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to comply with any of the indemnification provisions of Article XIV;
(i) if Borrower fails to obtain Lender’s prior written consent to any Transfer, if and as required by the Loan Agreement or the Security Instrument;
(j) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that (x) Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Property, the Account Collateral or the Rate Cap Collateral or any part thereof which is found by a court to have been raised by Borrower or Operating Lessee in bad faith or to be wholly without basis in fact or lawfaith, or (y) an involuntary case is commenced against Borrower or Operating Lessee under the Bankruptcy Code with the collusion of Borrower or Operating Lessee, Guarantor or any of their its Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their its Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors of Borrower General Partner has a fiduciary duty to seek such an order for relief;
(k) any actual loss, damage, cost, or expense incurred by or on behalf of Lender by reason of Borrower, Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose Entity; and
(l) reasonable attorney’s fees and expenses incurred by Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (kj).
Appears in 1 contract
Samples: Loan and Security Agreement (Digital Realty Trust, Inc.)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower and Guarantor there shall at no time be liable any limitation on Borrower's liability for the payment, in accordance with the terms of this Agreement, the Note, the Security Instrument and the other Loan Documents, to Lender of:
(a) any loss, damage, cost or expense Losses incurred by or on behalf of Lender by reason of (i) the fraudulent acts of or intentional misrepresentations by Borrower or any Affiliate of Borrower and/or (ii) the failure of Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal RequirementsBorrower;
(b) Proceeds which Borrower or any Affiliate of Borrower has received and intentionally misapplied (it being agreed that Borrower shall not be deemed to have misapplied Proceeds unless same are received by Borrower and not paid to Lender, in a circumstance in which Lender is expressly entitled to receive same from Borrower and/or any Affiliate pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been be applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with the provisions of this Agreement);
(c) all Losses incurred by Lender and arising from (i) any membership deposits and intentional misrepresentation of Borrower or any security deposits and advance deposits which are not delivered Affiliate of Borrower and/or (ii) Borrower's failure, after the occurrence of a Casualty Event, to cause Guarantor to deliver the Completion Guaranty to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions time periods set forth in Section 6.2.4 hereof, including, without limitation, any Losses incurred by or on behalf of Lender as a result of Lender's failure to make any of Proceeds available to Borrower to restore the Leases or membership agreement, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofProperty;
(d) any loss, damage, cost misappropriation of Rents or expense security deposits by Borrower or any Affiliate of Borrower;
(e) any Losses incurred by or on behalf of Lender by reason of all or any part of the Property, Property or the Account Collateral or the Rate Cap Collateral being encumbered by a Lien (other than this Agreement and the Security Instrument) in violation of the Loan Documents;
(ef) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income collected by Borrower, Operating Lessee Borrower or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables Rent sent to the applicable Deposit Collection Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companiesProperty) and not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan Documents;
(fg) any loss, damage, cost or expense Losses incurred by or on behalf of Lender by reason of physical damage to the Property from intentional waste committed by Borrower or any Affiliate of Borrower;
(gh) any loss, damage, cost or expense Losses incurred by or on behalf of Lender by reason of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(h) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the intentional failure of Borrower to comply with any of the provisions of Article XIVXII;
(i) if Borrower fails to obtain Lender’s prior written consent to any Transfer, if and as required by the Loan Agreement or the Security Instrument;
(j) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that (x) Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Property, the Account Collateral or the Rate Cap Collateral or any part thereof which is found by a court to have been raised by Borrower or Operating Lessee in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is commenced against Borrower or Operating Lessee under the Bankruptcy Code with the collusion of Borrower or Operating Lessee, Guarantor or any of their Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors of Borrower has a fiduciary duty to seek such an order for relief;
(k) any actual loss, damage, cost, or expense Losses incurred by or on behalf of Lender by reason of Borrower, Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose Entity; and
(l) reasonable attorney’s fees and expenses incurred by Lender in connection with any successful suit filed on account occurrence of any of the foregoing clauses following events:
(a1) through Borrower fails to comply with the material Single Purpose Entity requirements of this Agreement (kother than solely clause (xvii) of the definition of "Single Purpose Entity" set forth herein).; (2) Borrower fails to comply with any of the provisions of Section 8.1 and/or Section 8.5; (3) Borrower files a voluntary
Appears in 1 contract
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents (Junior Mezzanine) to the contrary, Borrower and Guarantor there shall at no time be liable any limitation on Mezzanine Borrower's or any Guarantor's liability (except each Guarantor's liability may be several in accordance with the terms of the Recourse Guaranty) for the payment, in accordance with the terms of this Agreement, the Mezzanine Note, the Security Instrument Pledge and the other Loan DocumentsDocuments (Junior Mezzanine), to Mezzanine Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of (i) the fraudulent acts of Mezzanine Borrower or intentional misrepresentations by Mezzanine Borrower or any Affiliate of Mezzanine Borrower and/or (ii) the failure of Mortgage Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal Requirements;
(b) Proceeds which Mortgage Borrower, any Affiliate of Mortgage Borrower, Mezzanine Borrower or any Affiliate of Mezzanine Borrower has received and to which Mezzanine Lender is entitled pursuant to the terms of this Agreement or any of the Loan Documents (Junior Mezzanine) to the extent the same have not been applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with the provisions of this AgreementLoan Agreement (Mortgage);
(c) any membership deposits and any security deposits and advance deposits which are not delivered to Mortgage Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreement, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(d) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of all or any part of the PropertyCollateral, the Account Collateral (Junior Mezzanine) or the Rate Cap Collateral (Junior Mezzanine) being encumbered by a Lien (other than this Agreement and the Security InstrumentPledge) in violation of the Loan DocumentsDocuments (Junior Mezzanine);
(e) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income collected by Mortgage Borrower, Mezzanine Borrower, Operating Lessee Lessee, or any Affiliate of Borrower Mortgage Borrower, Mezzanine Borrower, or Operating Lessee (other than Rents and credit card receivables sent to the applicable Deposit Collection Account pursuant to the Loan Agreement (Mortgage) or paid directly to Mortgage Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companies) and not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan DocumentsDocuments (Mortgage) and Loan Documents (Junior Mezzanine);
(f) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of physical damage to the Property from intentional waste committed by Mortgage Borrower, any Affiliate of Mortgage Borrower, Mezzanine Borrower or any Affiliate of Mezzanine Borrower;
(g) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument (Junior Mezzanine) concerning environmental laws, hazardous substances and asbestos and any indemnification of Mezzanine Lender with respect thereto in either documentthereto;
(h) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to comply with any of the provisions of Article XIV;
(i) if Borrower fails to obtain Lender’s prior written consent to any Transfer, if and as required by the Loan Agreement or the Security Instrument;
(j) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that (x) Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Property, the Account Collateral or the Rate Cap Collateral or any part thereof which is found by a court to have been raised by Borrower or Operating Lessee in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is commenced against Borrower or Operating Lessee under the Bankruptcy Code with the collusion of Borrower or Operating Lessee, Guarantor or any of their Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors of Borrower has a fiduciary duty to seek such an order for relief;
(k) any actual loss, damage, cost, or expense incurred by or on behalf of Lender by reason of Borrower, Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose Entity; and
(l) reasonable attorney’s fees and expenses incurred by Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (k).
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower and Guarantor there shall at no time be liable any limitation on Borrower’s and/or Maryland Owner’s liability for the payment, in accordance with the terms of this Agreement, the Note, the Security Instrument and the other Loan Documents, to Lender of:
(a) any loss, damage, cost or expense all Losses incurred by or on behalf of Lender by reason of (i) the fraudulent acts of (1) Borrower, (2) Guarantor, (3) Maryland Owner, or intentional misrepresentations (4) any Affiliate of Borrower in connection with the Loan;
(b) all Losses incurred by Borrower or on behalf of Lender by reason of the willful misconduct of (1) Borrower, (2) Maryland Owner or (3) Guarantor in connection with the Loan;
(c) Proceeds which Borrower, Maryland Owner or any Affiliate of Borrower and/or (ii) the failure of Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal Requirements;
(b) Proceeds which Borrower or any Affiliate of Borrower Maryland Owner has received and intentionally misapplied (it being agreed that neither Borrower nor Maryland Owner shall be deemed to have misapplied Proceeds unless same are received by Borrower and/or Maryland Owner and not paid to Lender, in a circumstance in which Lender is expressly entitled to receive same from Borrower and/or Maryland Owner pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been be applied toward payment of the Indebtedness, or used for the repair or replacement of the any Individual Property in accordance with the provisions of this Agreement);
(c) any membership deposits and any security deposits and advance deposits which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreement, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(d) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of all or any part of the Property, the Account Collateral or the Rate Cap Collateral being encumbered by a Lien (other than this Agreement and the Security Instrument) in violation of the Loan Documents;
(e) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income collected by Borrower, Operating Lessee or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables sent to the applicable Deposit Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companies) and not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan Documents;
(f) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of physical damage to the Property from intentional waste committed by Borrower or any Affiliate of Borrower;
(g) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(h) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to comply with any of the provisions of Article XIV;
(i) if Borrower fails to obtain Lender’s prior written consent to any Transfer, if and as required by the Loan Agreement or the Security Instrument;
(j) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that (x) Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Property, the Account Collateral or the Rate Cap Collateral or any part thereof which is found by a court to have been raised by Borrower or Operating Lessee in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is commenced against Borrower or Operating Lessee under the Bankruptcy Code with the collusion of Borrower or Operating Lessee, Guarantor or any of their Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors of Borrower has a fiduciary duty to seek such an order for relief;
(k) any actual loss, damage, cost, or expense incurred by or on behalf of Lender by reason of Borrower, Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose Entity; and
(l) reasonable attorney’s fees and expenses incurred by Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (k).
Appears in 1 contract
Samples: Loan and Security Agreement (Urban Edge Properties)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower there shall at no time be any limitation on any Guarantor’s liability for, and Guarantor and Borrower shall be jointly and severally liable for for, the payment, in accordance with the terms of this Agreement, the NoteNotes, the Security Instrument and the other Loan Documents, to Lender ofAdministrative Agent and the Lenders of the following:
(aA) any actual loss, damage, cost or expense actually incurred by or on behalf of Lender Administrative Agent or any of the Lenders by reason of (i) the fraudulent acts of or intentional misrepresentations by Borrower or any Affiliate of Borrower and/or or (ii) the failure of Borrower and/or or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal Requirements;
(bB) any actual loss, damage, cost or expense actually incurred by or on behalf of Administrative Agent or any of the Lenders by reason of Proceeds which Borrower or any Affiliate of Borrower has actually received and to which Lender Administrative Agent is entitled pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been applied toward payment of the Indebtedness, or used for in a manner permitted under the repair or replacement of the Property in accordance with the provisions of this AgreementLoan Documents;
(cC) any membership deposits and actual loss, damage, cost or expense actually incurred by or on behalf of Administrative Agent or any of the Lenders by reason of any security deposits and advance deposits which are not delivered to Lender Administrative Agent upon a foreclosure of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreementLeases, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(dD) any actual loss, damage, cost or expense actually incurred by or on behalf of Lender Administrative Agent or any of the Lenders by reason of all or any part of the Property, the Account Collateral, the IP Collateral or the Rate Cap Collateral being encumbered by a Lien (other than pursuant to this Agreement and the Security Instrument) in violation of the Loan Documents;
(eE) after the occurrence and during the continuance of an Event of Default, any actual loss, damage, cost or expense actually incurred by or on behalf of Administrative Agent or any of the Lenders by reason of any Rents, issues, profits and/or income collected by Borrower, Operating Lessee or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables sent to the applicable Deposit Account or paid directly to Lender Administrative Agent pursuant to any notice of direction delivered to tenants of the Property or credit card companies) and which are not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan Documents, in each case, as a result of the acts of Borrower, Operating Lessee or any Affiliate of Borrower or Operating Lessee;
(fF) any actual loss, damage, cost or expense actually incurred by or on behalf of Lender Administrative Agent or any of the Lenders by reason of physical damage to the Property from intentional waste or willful destruction (other than in connection with a permitted alteration) committed by Borrower or any Affiliate of Borrower;
(gG) any actual loss, damage, cost or expense actually incurred by Administrative Agent or Lenders as a result of the removal or disposal of any collateral for the Loan during the continuation of an Event of Default other than in the Ordinary Course of Business;
(H) any actual loss, damage, cost or expense actually incurred by Administrative Agent or Lenders as a result of a violation of the provisions of Section 5.2.1 or Section 8.1(B) hereof, other than de minimis violations of such provisions as a result of incurrence of trade payables or purchase money indebtedness in excess of the limitations thereon set forth in clauses (c) and (d) of the definition of Permitted Debt;
(I) any actual loss, damage, cost or expense actually incurred by or on behalf of Lender Administrative Agent or any of the Lenders as a result of any distribution in violation of the provisions of Section 5.2.13 hereof;
(J) any actual loss, damage, cost or expense actually incurred by or on behalf of Administrative Agent or any of the Lenders by reason of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender Administrative Agent or any of the Lenders with respect thereto in either document;
(hK) any actual loss, damage, cost or expense incurred by or on behalf of Lender Administrative Agent or any of the Lenders by reason of the failure of Borrower to comply with any of the provisions of Article XIVXV;
(iL) if Borrower fails any actual loss, damage, cost or expense incurred by or on behalf of Administrative Agent or any of the Lenders by reason of Borrower’s failure to obtain LenderAdministrative Agent’s prior written consent to any Transfer, if and as required by the Loan Agreement or the Security InstrumentInstrument or any other violation of Section 8.1(A);
(jM) all of the Indebtedness and the Obligations in the event of: (i) any of Borrower, Guarantor or any other Transaction Party filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (ii) any of Borrower, Guarantor or any other Transaction Party filing an answer consenting to or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited, or colluding with (or any of such Borrower’s, Guarantor’s or any other Transaction Party’s Affiliates colluding with) petitioning creditors to file any such involuntary petition from any Person; (iii) any Borrower, Guarantor or any other Transaction Party consenting to or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for any of Borrower, Guarantor or any other Transaction Party or any portion of the Mortgaged Property; (iv) any of Borrower, Guarantor or any other Transaction Party making an assignment for the benefit of creditors; and all liabilities(v) Borrower, obligationsOperating Lessee or a Person Controlling them seeking to substantively consolidate any Person other than Borrower or Operating Lessee with Borrower or Operating Lessee in connection with an action under the Bankruptcy Code involving Borrower or Operating Lessee;
(N) any actual loss, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature damage or description whatsoever) expense which may at any time be imposed upon, incurred by or awarded against Lender, Administrative Agent or any of the Lenders in the event (and arising out of such circumstances) that (x) Borrower any Transaction Party should raise any defense, counterclaim and/or or allegation in any foreclosure action by Lender Administrative Agent relative to the Property, the Account Collateral, the IP Collateral or the Rate Cap Collateral or any part thereof which is found by a court to have been raised by Borrower or Operating Lessee such Transaction Party in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is commenced against Borrower or Operating Lessee under the Bankruptcy Code with the collusion of Borrower or Operating Lessee, Guarantor or any of their Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors of Borrower has a fiduciary duty to seek such an order for relief;
(kO) any actual loss, damage, cost, damage or expense incurred by or on behalf of Lender Administrative Agent or any of the Lenders by reason of Borrower, Borrower or Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose Entity;
(P) all the Obligations by reason of the failure of Borrower to maintain insurance policies in accordance with Section 6.1.16 in the event the insurance coverage required under Section 6.1 is effected under a blanket policy or policies in accordance with Section 6.1.16 and proceeds therefrom are either not available or not sufficient for Borrower to satisfy its obligations hereunder as if it had otherwise maintained insurance under separate policies under Section 6.1;
(Q) during the continuance of a Cash Sweep Period, any actual loss, damage or expense incurred by or on behalf of Administrative Agent or any of the Lenders by reason of Borrower’s failure to apply any funds received by Borrower pursuant to Section 3.1.6(iii) for the purpose such funds were transferred to Borrower;
(R) any actual loss, damage or expense in excess of the amounts paid previously in the ordinary course as Operating Expenses incurred by or on behalf of Administrative Agent or any of the Lenders, including, without limitation, fines, brokerage commissions, and/or increased ground lease rents and expenses incurred prior to the Maturity Date, resulting from the failure of the Property to have sufficient parking or access thereto (as required pursuant to any currently applicable Legal Requirements) as a result of the amendment, termination or replacement of either Ground Lease prior to the full repayment of the Debt unless such amendment, termination or replacement is consented to by Administrative Agent; and
(lS) reasonable attorney’s fees and expenses incurred by Lender Administrative Agent or any of the Lenders in connection with any successful suit filed on account of any of the foregoing clauses (aA) through (kR).
Appears in 1 contract
Samples: Loan and Security Agreement (Strategic Hotels & Resorts, Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower there shall at no time be any limitation on any Guarantor’s liability for, and Guarantor and the Borrower shall be jointly and severally liable for for, the payment, in accordance with the terms of this Agreement, the NoteNotes, the Security Instrument and the other Loan Documents, to Lender of:Administrative Agent and the Lenders of the following (Recourse Liabilities):
(aA) any actual loss, damage, cost or expense actually incurred by or on behalf of Lender Administrative Agent or any of the Lenders by reason of (i) the fraudulent acts of or intentional misrepresentations by Borrower or any Affiliate of Borrower and/or or (ii) the failure of Borrower and/or or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal Requirements;
(bB) Proceeds which Borrower or any Affiliate of Borrower has actually received and to which Lender Administrative Agent is entitled pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with the provisions of this Agreement;
(cC) any membership deposits and any security deposits and advance deposits which are not delivered to Lender Administrative Agent upon a foreclosure of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreementLeases, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(dD) any actual loss, damage, cost or expense actually incurred by or on behalf of Lender Administrative Agent or any of the Lenders by reason of all or any part of the Property, the Account Collateral, the IP Collateral or the Rate Cap Collateral being encumbered by a Lien (other than pursuant to this Agreement and the Security Instrument) in violation of the Loan Documents;
(eE) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income collected by Borrower, Operating Lessee or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables sent to the applicable Deposit Account or paid directly to Lender Administrative Agent pursuant to any notice of direction delivered to tenants of the Property or credit card companies) and which are not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan Documents, in each case, as a result of the acts of Borrower, Operating Lessee or any Affiliate of Borrower or Operating Lessee;
(fF) any actual loss, damage, cost or expense actually incurred by or on behalf of Lender Administrative Agent or any of the Lenders by reason of physical damage to the Property from intentional waste or willful destruction (other than in connection with a permitted alteration) committed by Borrower or any Affiliate of Borrower;
(gG) any actual loss, damage, cost or expense actually incurred by Administrative Agent or Lenders as a result of the removal or disposal of any collateral for the Loan during the continuation of an Event of Default other than in the Ordinary Course of Business;
(H) any actual loss, damage, cost or expense actually incurred by Administrative Agent or Lenders as a result of a violation of the provisions of Section 5.2.1 or Section 8.1(b) hereof, other than de minimis violations of such provisions as a result of incurrence of trade payables or purchase money indebtedness in excess of the limitations thereon set forth in clauses (c) and (d) of the definition of Permitted Debt;
(I) any actual loss, damage, cost or expense actually incurred by Lender as a result of any distribution in violation of the provisions of Section 5.2.13 hereof;
(J) any actual loss, damage, cost or expense actually incurred by or on behalf of Lender Administrative Agent or any of the Lenders by reason of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender Administrative Agent or any of the Lenders with respect thereto in either document;
(hK) any actual loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to comply with any of the provisions of Article XIVXV;
(iL) if Borrower fails any actual loss, damage, cost or expense incurred by or on behalf of Administrative Agent or any of the Lenders by reason of Borrower’s failure to obtain LenderAdministrative Agent’s prior written consent to any Transfer, if and as required by the Loan Agreement or the Security InstrumentInstrument or any other violation of section 8.1(a);
(jM) all of the Indebtedness and the Obligations in the event of: (i) any of Borrower, Guarantor or any other Transaction Party filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (ii) any of Borrower, Guarantor or any other Transaction Party filing an answer consenting to or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited, or colluding with (or any of such Borrower’s, Guarantor’s or any other Transaction Party’s Affiliates colluding with) petitioning creditors to file any such involuntary petition from any Person; (iii) any Borrower, Guarantor or any other Transaction Party consenting to or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for any of Borrower, Guarantor or any other Transaction Party or any portion of the Mortgaged Property; (iv) any of Borrower, Guarantor or any other Transaction Party making an assignment for the benefit of creditors; and all liabilities(v) Borrower, obligationsOperating Lessee or a Person Controlling them seeking substantive consolidation in connection with an action under the Bankruptcy Code involving Borrower or Operating Lessee;
(N) any actual loss, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature damage or description whatsoever) expense which may at any time be imposed upon, incurred by or awarded against Lender, Administrative Agent or any of the Lenders in the event (and arising out of such circumstances) that (x) any Borrower Party should raise any defense, counterclaim and/or or allegation in any foreclosure action by Lender Administrative Agent relative to the Property, the Account Collateral, the IP Collateral or the Rate Cap Collateral or any part thereof which is found by a court to have been raised by such Borrower or Operating Lessee Party in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is commenced against Borrower or Operating Lessee under the Bankruptcy Code with the collusion of Borrower or Operating Lessee, Guarantor or any of their Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors of Borrower has a fiduciary duty to seek such an order for relief;
(kO) any actual loss, damage, cost, damage or expense incurred by or on behalf of Lender Administrative Agent or any of the Lenders by reason of Borrower, Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose Entity;
(P) full amount of the Obligations by reason of the failure of Borrower to maintain policies in accordance with Section 6.1.16 in the event the insurance coverage required under Section 6.1 is effected under a blanket policy or policies in accordance with Section 6.1.16 and proceeds therefrom are either not available or not sufficient for Borrower to satisfy its obligations hereunder as if it had otherwise maintained insurance under separate policies under Section 6.1;
(Q) during the continuance of a Cash Sweep Period, in the event Borrower fails to apply any funds received by Borrower pursuant to Section 3.1.6(iii) for the purpose such funds were transferred to Borrower; and
(lR) reasonable attorney’s fees and expenses incurred by Lender Administrative Agent or any of the Lenders in connection with any successful suit filed on account of any of the foregoing clauses (aA) through (kQ).
Appears in 1 contract
Samples: Loan and Security Agreement (Strategic Hotels & Resorts, Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower there shall at no time be any limitation on any Guarantor’s liability for, and Guarantor and the Borrower shall be jointly and severally liable for for, the payment, in accordance with the terms of this Agreement, the NoteNotes, the Security Instrument and the other Loan Documents, to Lender of:Administrative Agent and the Lenders of the following (Recourse Liabilities):
(aA) any actual loss, damage, cost or expense actually incurred by or on behalf of Lender Administrative Agent or any of the Lenders by reason of (i) the fraudulent acts of or intentional misrepresentations by Borrower or any Affiliate of Borrower and/or or (ii) the failure of Borrower and/or or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal Requirements;
(bB) Proceeds which Borrower or any Affiliate of Borrower has actually received and to which Lender Administrative Agent is entitled pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with the provisions of this Agreement;
(cC) any membership deposits and any security deposits and advance deposits which are not delivered to Lender Administrative Agent upon a foreclosure of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreementLeases, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(dD) any actual loss, damage, cost or expense actually incurred by or on behalf of Lender Administrative Agent or any of the Lenders by reason of all or any part of the Property, the Account Collateral, the IP Collateral or the Rate Cap Collateral being encumbered by a Lien (other than pursuant to this Agreement and the Security Instrument) in violation of the Loan Documents;
(eE) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income collected by Borrower, Operating Lessee or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables sent to the applicable Deposit Account or paid directly to Lender Administrative Agent pursuant to any notice of direction delivered to tenants of the Property or credit card companies) and which are not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan Documents, in each case, as a result of the acts of Borrower, Operating Lessee or any Affiliate of Borrower or Operating Lessee;
(fF) any actual loss, damage, cost or expense actually incurred by or on behalf of Lender Administrative Agent or any of the Lenders by reason of physical damage to the Property from intentional waste or willful destruction (other than in connection with a permitted alteration) committed by Borrower or any Affiliate of Borrower;
(gG) any actual loss, damage, cost or expense actually incurred by Administrative Agent or Lenders as a result of the removal or disposal of any collateral for the Loan during the continuation of an Event of Default other than in the Ordinary Course of Business;
(H) any actual loss, damage, cost or expense actually incurred by Administrative Agent or Lenders as a result of a violation of the provisions of Section 5.2.1 or Section 8.1(b) hereof, other than de minimis violations of such provisions as a result of incurrence of trade payables or purchase money indebtedness in excess of the limitations thereon set forth in clauses (c) and (d) of the definition of Permitted Debt;
(I) any actual loss, damage, cost or expense actually incurred by Lender as a result of any distribution in violation of the provisions of Section 5.2.13 hereof;
(J) any actual loss, damage, cost or expense actually incurred by or on behalf of Lender Administrative Agent or any of the Lenders by reason of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender Administrative Agent or any of the Lenders with respect thereto in either document;
(hK) any actual loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to comply with any of the provisions of Article XIVXV;
(iL) if Borrower fails any actual loss, damage, cost or expense incurred by or on behalf of Administrative Agent or any of the Lenders by reason of Borrower’s failure to obtain LenderAdministrative Agent’s prior written consent to any Transfer, if and as required by the Loan Agreement or the Security InstrumentInstrument or any other violation of section 8.1(a);
(jM) all of the Indebtedness and the Obligations in the event of: (i) any of Borrower, Guarantor or any other Transaction Party filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (ii) any of Borrower, Guarantor or any other Transaction Party filing an answer consenting to or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited, or colluding with (or any of such Borrower’s, Guarantor’s or any other Transaction Party’s Affiliates colluding with) petitioning creditors to file any such involuntary petition from any Person; (iii) any Borrower, Guarantor or any other Transaction Party consenting to or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for any of Borrower, Guarantor or any other Transaction Party or any portion of the Mortgaged Property; (iv) any of Borrower, Guarantor or any other Transaction Party making an assignment for the benefit of creditors; and all liabilities(v) Borrower, obligationsOperating Lessee or a Person Controlling them seeking to substantively consolidate any Person other than Borrower or Operating Lessee with Borrower or Operating Lessee in connection with an action under the Bankruptcy Code involving Borrower or Operating Lessee;
(N) any actual loss, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature damage or description whatsoever) expense which may at any time be imposed upon, incurred by or awarded against Lender, Administrative Agent or any of the Lenders in the event (and arising out of such circumstances) that (x) any Borrower Party should raise any defense, counterclaim and/or or allegation in any foreclosure action by Lender Administrative Agent relative to the Property, the Account Collateral, the IP Collateral or the Rate Cap Collateral or any part thereof which is found by a court to have been raised by such Borrower or Operating Lessee Party in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is commenced against Borrower or Operating Lessee under the Bankruptcy Code with the collusion of Borrower or Operating Lessee, Guarantor or any of their Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors of Borrower has a fiduciary duty to seek such an order for relief;
(kO) any actual loss, damage, cost, damage or expense incurred by or on behalf of Lender Administrative Agent or any of the Lenders by reason of Borrower, Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose Entity;
(P) full amount of the Obligations by reason of the failure of Borrower to maintain policies in accordance with Section 6.1.16 in the event the insurance coverage required under Section 6.1 is effected under a blanket policy or policies in accordance with Section 6.1.16 and proceeds therefrom are either not available or not sufficient for Borrower to satisfy its obligations hereunder as if it had otherwise maintained insurance under separate policies under Section 6.1;
(Q) during the continuance of a Cash Sweep Period, in the event Borrower fails to apply any funds received by Borrower pursuant to Section 3.1.6(iii) for the purpose such funds were transferred to Borrower; and
(lR) reasonable attorney’s fees and expenses incurred by Lender Administrative Agent or any of the Lenders in connection with any successful suit filed on account of any of the foregoing clauses (aA) through (kQ).
Appears in 1 contract
Samples: Loan and Security Agreement (Strategic Hotels & Resorts, Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower and Guarantor there shall at no time be liable any limitation on Borrower’s or any Guarantor’s liability for the payment, in accordance with the terms of this Agreement, the NoteNotes, the Security Instrument and the other Loan Documents, to Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of (i) the fraudulent acts of or intentional misrepresentations by Borrower or any Affiliate of Borrower and/or (ii) the failure of Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal RequirementsBorrower;
(b) Proceeds which Borrower or any Affiliate of Borrower has received and to which Lender is entitled pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with the provisions of this Agreement;
(c) all loss, damage, cost or expense as incurred by Lender and arising from any membership deposits and intentional misrepresentation of Borrower or any security deposits and advance deposits which are not delivered to Lender upon a foreclosure Affiliate of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreement, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofBorrower;
(d) any misappropriation of Rents or security deposits by Master Lessee, Borrower or any of their respective Affiliates;
(e) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of all or any part of the Property, the Account Collateral or the Rate Cap Collateral being encumbered by a Lien by reason of the acts of Borrower or any Affiliate of Borrower from and after the date hereof (other than this Agreement and the Security Instrument) in violation of the Loan Documents;
(ef) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income from the Property collected by Borrower, Operating Lessee Borrower or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables Rent sent to the applicable Deposit Holding Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companiesProperty) and not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses operating expenses of the Property or otherwise applied in a manner permitted under the Loan Documents;
(fg) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of physical damage to the Property from intentional waste committed by Borrower or any Affiliate of Borrower;
(g) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(h) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to comply with any of the provisions of Article XIVXII;
(i) if Borrower fails to obtain Lender’s prior written consent to any Transferloss, if and as required damage, cost or expense incurred by the Loan Agreement or the Security Instrumenton behalf of Lender by reason of any breach of a representation set forth in Section 4.1.31;
(j) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to deliver to Lender the net sales proceeds of a Transfer of an Individual Property described in Section 5.1.9(b) together with any shortfall necessary to pay in full the Release Price for such Individual Property, in accordance with the provisions of Section 5.1.9(b);
(k) reserved;
(l) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that (x) Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Property, the Account Collateral or the Rate Cap Collateral or any part thereof which is found by a court to have been raised by Borrower or Operating Lessee in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is commenced against Borrower or Operating Lessee Guarantor under the Bankruptcy Code with the collusion of Borrower or Operating LesseeBorrower, Guarantor or any of their Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee Guarantor under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their Affiliates at a time when the Borrower or Guarantor, as applicable, is able to pay its debts as they become due unless Borrower and Guarantor or Guarantor, as applicable, shall have received an opinion of independent counsel that the directors of Borrower Borrower, Guarantor or such Affiliate, as applicable, has a fiduciary duty to seek such an order for relief;
(km) any actual all liabilities, obligations, claims, damages, loss, damagepenalties, costcosts and expenses imposed upon, or expense incurred by or on behalf asserted against Lender or any Ground Leased Property and arising from or in connection with any inaccuracy or misrepresentation contained in any Clean Borrower Estoppel Certificate, provided, however, that as and when a Property is no longer a Deficient GL Property, as provided in the definition of Lender the term “Deficient GL Property”, the recourse liability of Borrower under the Clean Borrower Estoppel Certificate and the recourse liability of Borrower and Guarantor under this clause (m) shall be automatically released in its entirety with with respect to such Property (or to the extent of the substance of any matter which is certified in the Clean Ground Lessor Estoppel Certificate without material exception, revision or supplement, as applicable) (and upon request by reason of Borrower, Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose EntityLender shall promptly confirm any such release in writing); andor
(ln) reasonable attorney’s fees and expenses actually incurred by Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (km).
Appears in 1 contract
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower and Guarantor there shall at no time be liable any limitation on Borrower’s or any Guarantor’s liability for the payment, in accordance with the terms of this Agreement, the NoteNotes, the Security Instrument and the other Loan Documents, to Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of (i) the fraudulent acts of or intentional misrepresentations by Borrower or any Affiliate of Borrower and/or (ii) the failure of Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal RequirementsBorrower;
(b) Proceeds which Borrower or any Affiliate of Borrower has received and to which Lender is entitled pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with the provisions of this Agreement;
(c) all loss, damage, cost or expense as incurred by Lender and arising from any membership deposits and intentional misrepresentation of Borrower or any security deposits and advance deposits which are not delivered to Lender upon a foreclosure Affiliate of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreement, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofBorrower;
(d) any misappropriation of Rents or security deposits by Master Lessee, Borrower or any of their respective Affiliates;
(e) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of all or any part of the Property, the Account Collateral or the Rate Cap Collateral being encumbered by a Lien by reason of the acts of Borrower or any Affiliate of Borrower from and after the date hereof (other than this Agreement and the Security Instrument) in violation of the Loan Documents;
(ef) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income from the Property collected by Borrower, Operating Lessee Borrower or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables Rent sent to the applicable Deposit Holding Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companiesProperty) and not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses operating expenses of the Property or otherwise applied in a manner permitted under the Loan Documents;
(fg) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of physical damage to the Property from intentional waste committed by Borrower or any Affiliate of Borrower;
(g) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(h) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to comply with any of the provisions of Article XIVXII;
(i) if Borrower fails to obtain Lender’s prior written consent to any Transferloss, if and as required damage, cost or expense incurred by the Loan Agreement or the Security Instrumenton behalf of Lender by reason of any breach of a representation set forth in Section 4.1.31;
(j) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to deliver to Lender the net sales proceeds of a Transfer of an Individual Property described in Section 5.1.9(b) together with any shortfall necessary to pay in full the Release Price for such Individual Property, in accordance with the provisions of Section 5.1.9(b);
(k) reserved;
(l) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that (x) Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Property, the Account Collateral or the Rate Cap Collateral or any part thereof which is found by a court to have been raised by Borrower or Operating Lessee in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is commenced against Borrower or Operating Lessee Guarantor under the Bankruptcy Code with the collusion of Borrower or Operating LesseeBorrower, Guarantor or any of their Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee Guarantor under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their Affiliates at a time when the Borrower or Guarantor, as applicable, is able to pay its debts as they become due unless Borrower and Guarantor or Guarantor, as applicable, shall have received an opinion of independent counsel that the directors of Borrower Borrower, Guarantor or such Affiliate, as applicable, has a fiduciary duty to seek such an order for relief;; or
(k) any actual loss, damage, cost, or expense incurred by or on behalf of Lender by reason of Borrower, Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose Entity; and
(lm) reasonable attorney’s fees and expenses actually incurred by Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (kl).
Appears in 1 contract
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower and Guarantor there shall at no time be liable any limitation on Borrower’s or any Guarantor’s liability for the payment, in accordance with the terms of this Agreement, the NoteNotes, the Security Instrument Instruments and the other Loan Documents, to Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of (i) the fraudulent acts of or intentional misrepresentations by Borrower or any Affiliate of Borrower and/or (ii) the failure of Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal RequirementsBorrower;
(b) Proceeds which Borrower or any Affiliate of Borrower has received and to which Lender is entitled pursuant to the terms of this Agreement or any of the Loan Documents to the extent the same have not been applied toward payment of the Indebtedness, or used for the repair or replacement of the Property in accordance with the provisions of this Agreement;
(c) all loss, damage, cost or expense as incurred by Lender and arising from any membership deposits and intentional misrepresentation of Borrower or any security deposits and advance deposits which are not delivered to Lender upon a foreclosure Affiliate of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreement, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofBorrower;
(d) any misappropriation of Rents or security deposits or other funds relating to the Properties by Master Lessee, Borrower or any of their respective Affiliates;
(e) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of all or any part of the Property, the Account Collateral or the Rate Cap Protection Collateral being encumbered by a Lien or Transferred by reason of the acts of Borrower or any Affiliate of Borrower from and after the date hereof (other than this Agreement and the Security InstrumentInstruments) in violation of the Loan Documents;
(ef) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income from the Property collected by Borrower, Operating Lessee Borrower or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables Rent sent to the applicable Deposit Holding Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companiesProperty) and not applied to payment of the Indebtedness or the Obligations or used to pay normal and verifiable Operating Expenses operating expenses of the Property or otherwise applied in a manner permitted under the Loan Documents;
(f) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of physical damage to the Property from intentional waste committed by Borrower or any Affiliate of Borrower;
(g) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of physical damage to the breach Property from intentional waste or other willful destruction (other than in connection with a permitted alteration) committed by Borrower or any Affiliate of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentBorrower;
(h) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to comply with any of the provisions of Article XIVXII;
(i) if Borrower fails to obtain Lender’s prior written consent to any Transferloss, if and as required damage, cost or expense incurred by the Loan Agreement or the Security Instrumenton behalf of Lender by reason of any breach of a representation set forth in Section 4.1.30 or any covenant set forth in Section 5.1.4;
(j) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to deliver to Lender the net sales proceeds of a Transfer of an Individual Property described in Section 2.3.4 together with any shortfall necessary to pay in full the Release Price for such Individual Property, in accordance with the provisions of Section 2.3.4;
(k) all of the Indebtedness and the Obligations in the event of: (i) any Borrower Party or any Master Lessee Party filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (ii) any Borrower Party or Master Lessee Party filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited, or colluding with (or any of such Borrower Party’s or Master Lessee Party’s Affiliates colluding with) petitioning creditors to file any such involuntary petition from any Person; (iii) any Borrower Party or Master Lessee Party consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for any Borrower Party or Master Lessee Party or any portion of the Property; (iv) any Borrower Party or Master Lessee Party making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, that it is insolvent;
(l) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that (x) Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Property, the Account Collateral or the Rate Cap Protection Collateral or any part thereof which is found by a court to have been raised by Borrower or Operating Lessee in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is commenced against Borrower or Operating Lessee under the Bankruptcy Code with the collusion of Borrower or Operating Lessee, Guarantor or any of their Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors of Borrower has a fiduciary duty to seek such an order for relief;; or
(k) any actual loss, damage, cost, or expense incurred by or on behalf of Lender by reason of Borrower, Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose Entity; and
(lm) reasonable attorney’s fees and expenses actually incurred by Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (kl).
Appears in 1 contract
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents to the contrary, Borrower and Guarantor there shall at no time be liable any limitation on Borrower’s or any Guarantor’s liability for the payment, in accordance with the terms of this Agreement, the NoteNotes, the Security Instrument Instruments and the other Loan DocumentsDocuments and the Specified Interest Rate Contracts, to Lender Administrative Agent and the Secured Parties of:
(a) Borrower’s obligation to maintain the Minimum Balance in the Interest Reserve Account at all times during the term of the Facility;
(b) any loss, damage, cost or expense incurred by or on behalf of Lender the Secured Parties by reason of (i) the fraudulent acts of or intentional misrepresentations by Borrower or any Affiliate of Borrower and/or (ii) the failure of Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal RequirementsBorrower;
(bc) Proceeds which Borrower or any Affiliate of Borrower has received and to which Lender is Administrative Agent and/or the Secured Parties are entitled pursuant to the terms of this Agreement or any of the Loan Documents or the Specified Interest Rate Contracts to the extent the same have not been applied toward payment of the IndebtednessObligations, or used for the repair or replacement of the Mortgaged Property in accordance with the provisions of this Agreement;
(c) any membership deposits and any security deposits and advance deposits which are not delivered to Lender upon a foreclosure of the Property or action in lieu thereof, except to the extent any such deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreement, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(d) any all loss, damage, cost or expense as incurred by or on behalf Administrative Agent and/or the Secured Parties and arising from any intentional misrepresentation of Lender by reason of all Borrower or any part Affiliate of the Property, the Account Collateral or the Rate Cap Collateral being encumbered by a Lien (other than this Agreement and the Security Instrument) in violation of the Loan DocumentsBorrower;
(e) after any misappropriation of rents or security deposits or other funds relating to the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income collected Mortgaged Properties by Borrower, Operating Lessee Borrower or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables sent to the applicable Deposit Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companies) and not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan Documentsits Affiliates;
(f) any loss, damage, cost or expense incurred by or on behalf of Lender the Secured Parties by reason of physical damage to all or any part of the Mortgaged Property, the Account Collateral or the Rate Protection Collateral being encumbered by a Lien or Transferred by reason of the acts of Borrower or any Affiliate of Borrower from and after the date hereof (other than this Agreement and the Security Instruments) in violation of the Loan Documents;
(g) after the occurrence and during the continuance of an Event of Default, any rents, issues, profits and/or income from the Mortgaged Property from intentional waste committed collected by Borrower or any Affiliate of Borrower;
Borrower (g) other than rent paid directly to Administrative Agent pursuant to any loss, damage, cost or expense incurred by or on behalf notice of Lender by reason direction delivered to tenants of the breach Mortgaged Property) and not applied to payment of any representation, warranty, covenant the Obligations or indemnification provision used to pay normal and verifiable operating expenses of the Mortgaged Property or otherwise applied in a manner permitted under the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentLoan Documents;
(h) any loss, damage, cost or expense incurred by or on behalf of Lender the Secured Parties by reason of physical damage to the Mortgaged Property from intentional waste or other willful destruction committed by Borrower or any Affiliate of Borrower;
(i) any loss, damage, cost or expense incurred by or on behalf of the Secured Parties by reason of any breach of a representation set forth in Section 4.15 or the failure of Borrower to comply with any of the provisions of Article XIV;
(i) if Borrower fails to obtain Lender’s prior written consent to any Transfer, if and as required by the Loan Agreement or the Security InstrumentSection 5.9;
(j) any loss, damage, cost or expense incurred by or on behalf of the Secured Parties by reason of any breach of a representation set forth in Section 4.25 or any covenant set forth in Section 5.14;
(k) any loss, damage, cost or expense incurred by or on behalf of the Secured Parties by reason of the failure of Borrower to pay in full the Release Payment for a Real Property, in accordance with the provisions of Section 6.4(3)(iv);
(l) all of the Obligations in the event of: (i) any Borrower Party filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (ii) any Borrower Party filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited, or colluding with (or any of such Borrower Party’s Affiliates colluding with) petitioning creditors to file any such involuntary petition from any Person; (iii) any Borrower Party consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for any Borrower Party or any portion of the Mortgaged Property; (iv) any Borrower Party making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, that it is insolvent;
(m) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against LenderAdministrative Agent and/or the Secured Parties, in the event (and arising out of such circumstances) that (x) Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender Administrative Agent relative to the Mortgaged Property, the Account Collateral or the Rate Cap Protection Collateral or any part thereof which is found by a court to have been raised by Borrower or Operating Lessee in bad faith or to be wholly without basis in fact or law, or (y) an involuntary case is commenced against Borrower or Operating Lessee under the Bankruptcy Code with the collusion of Borrower or Operating Lessee, Guarantor or any of their Affiliates or (z) an order for relief is entered with respect to the Borrower or Operating Lessee under the Bankruptcy Code through the actions of the Borrower or Operating Lessee, Guarantor or any of their Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors of Borrower has a fiduciary duty to seek such an order for relief;; or
(k) any actual loss, damage, cost, or expense incurred by or on behalf of Lender by reason of Borrower, Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose Entity; and
(ln) reasonable attorney’s fees and expenses actually incurred by Lender Administrative Agent and/or the Secured Parties in connection with any successful suit or other action filed or commenced on account of any of the foregoing clauses (a) through (km).
Appears in 1 contract
