Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents (Intermediate Mezzanine) to the contrary, there shall at no time be 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 Pledge and the other Loan Documents (Intermediate Mezzanine), to Mezzanine Lender of: (a) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of 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 (Intermediate 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 Loan 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 Collateral, the Account Collateral (Intermediate Mezzanine) or the Rate Cap Collateral (Intermediate Mezzanine) being encumbered by a Lien (other than this Agreement and the Pledge) in violation of the Loan Documents (Intermediate 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, or any Affiliate of Mortgage Borrower, Mezzanine Borrower, or Operating Lessee (other than Rents and credit card receivables sent to the 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 Documents (Mortgage) and Loan Documents (Intermediate 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 (Intermediate Mezzanine) concerning environmental laws, hazardous substances and asbestos and any indemnification of Mezzanine Lender with respect thereto;
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 Mezzanine Loan Documents (Intermediate Mezzanine) to the contrary, there shall at no time be any limitation on Mezzanine Borrower's ’s or any Guarantor's ’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 Pledge and the other Mezzanine Loan Documents (Intermediate Mezzanine)Documents, to Mezzanine Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of 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 RequirementsBorrower;
(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 Mezzanine Loan Documents (Intermediate 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 Loan Agreement (Mortgage);
(c) all loss, damage, cost or expense as incurred by Mezzanine Lender and arising from any membership deposits and intentional misrepresentation of Mortgage Borrower, Mezzanine Borrower or any security deposits and advance deposits which are not delivered to Mortgage 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 thereofMezzanine Borrower;
(d) any misappropriation of Rents or security deposits by Mortgage Borrower, Master Lessee, Mezzanine Borrower or any of their respective Affiliates;
(e) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of all or any part of the Collateral, the Account Collateral (Intermediate Mezzanine) or the Rate Cap Collateral (Intermediate Mezzanine) being encumbered by a Lien by reason of the acts of Mezzanine Borrower or any Affiliate of Mezzanine Borrower from and after the date hereof (other than as provided in this Agreement and Agreement, the PledgePledge and/or any other Mezzanine Loan Document) in violation of the Mezzanine Loan Documents (Intermediate Mezzanine)Documents;
(ef) after the occurrence and during the continuance of an Event of DefaultDefault by Mezzanine Borrower hereunder or under any other Mezzanine Loan Document, any RentsRents belonging to Mortgage Borrower, issues, profits and/or income from the Property collected by Mortgage Borrower, Mezzanine Borrower, Operating Lessee, Borrower or any Affiliate of Mortgage Borrower, Mezzanine Borrower, or Operating Lessee (Borrower other than Rents and credit card receivables Rent sent to the Collection Holding Account pursuant to the Loan Agreement (Mortgage) or (and not paid directly to Mortgage 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 are not applied in a manner permitted under the Loan Documents (Mortgage) and or the Mezzanine Loan Documents (Intermediate Mezzanine)Documents;
(fg) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of any 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;
(gh) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the breach failure of Borrower to comply with any representationof the provisions of Article XIII;
(i) any loss, warrantydamage, covenant cost or indemnification provision in the Environmental Indemnity (Intermediate Mezzanine) concerning environmental laws, hazardous substances and asbestos and any indemnification expense incurred by or on behalf of Mezzanine Lender by reason of any breach of a representation by Mortgage Borrower set forth in Section 4.1.31 of the Loan Agreement (Mortgage).
(j) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the failure of Mezzanine Borrower to deliver to Mezzanine Lender the net sales proceeds of a Transfer of an Individual Property together with any shortfall necessary to pay in full the Release Price for such Individual Property in accordance with the provisions set forth herein;
(k) any loss, damage, cost, or expense incurred by or on behalf of Mezzanine Lender arising from any misrepresentation of Mezzanine Borrower in Section 4.1.6 (c) or (d) to the extent Mezzanine Lender claims or asserts such amounts are covered or insured by the Mortgage Borrower’s owner’s title policy or the Owner’s Title Policy Loss Payment Direction Letter;
(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 Mezzanine Lender, in the event (and arising out of such circumstances) that (x) Mezzanine Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Mezzanine 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 Mezzanine Borrower in bad faith or to be without basis in fact or law, or (y) an involuntary case is commenced against Mezzanine Borrower or Guarantor under the Bankruptcy Code with the collusion of Mezzanine Borrower or Guarantor or any of their Affiliates or (z) an order for relief is entered with respect theretoto the Mezzanine Borrower or Guarantor under the Bankruptcy Code through the actions of the Mezzanine Borrower or Guarantor or any of their Affiliates at a time when the Mezzanine Borrower or Guarantor, as applicable, is able to pay its debts as they become due unless Mezzanine Borrower or Guarantor, as applicable, shall have (i) received an opinion of independent counsel that the Mezzanine Borrower or Guarantor or such Affiliate, as applicable, has a fiduciary duty to seek such an order for relief;
(m) reasonable attorney’s fees and expenses actually incurred by Mezzanine Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (h).
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Toys R Us Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents (Intermediate Mezzanine) to the contrary, there shall at no time be any limitation on Mezzanine Borrower's ’s or any Guarantor's ’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 Pledge and the other Loan Documents (Intermediate Mezzanine), to Mezzanine Lender offor:
(a) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of 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 RequirementsBorrower;
(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 (Intermediate Mezzanine) ), to the extent the same have not been applied toward payment of the Indebtedness, Indebtedness or used for the repair or replacement of the Property in accordance with the Loan Agreement (Mortgage)) or this Agreement or otherwise delivered to Mortgage Lender or Mezzanine Lender;
(c) all loss, damage, cost or expense incurred by Mezzanine Lender and arising from any membership deposits and intentional misrepresentation of Mortgage Borrower, Mezzanine Borrower or any security deposits and advance deposits which are not delivered to Mortgage 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 thereofMezzanine Borrower;
(d) any misappropriation of Rents or security deposits by Mortgage Borrower, any Affiliate of Mortgage Borrower, Mezzanine Borrower or any Affiliate of Mezzanine Borrower;
(e) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of all or any part of the Collateral, the Account Collateral (Intermediate Mezzanine) Property or the Rate Cap Collateral (Intermediate Mezzanine) being encumbered by a Lien (other than this Agreement and the Pledge) in violation of the Loan Documents (Intermediate Mezzanine) (unless caused by Mortgage Lender’s failure to apply funds held in the Tax Reserve Account (as defined in the Loan Agreement (Mortgage) pursuant to Section 16.1 of the Loan Agreement (Mortgage));
(ef) after the occurrence and during the continuance of an Event of DefaultDefault by Mezzanine Borrower hereunder or under any other Loan Document (Mezzanine), any Rents, issues, profits and/or income collected by Mortgage Borrower, Mezzanine Borrower, Operating Lessee, Borrower or any Affiliate of Mortgage Borrower, Mezzanine Borrower, or Operating Lessee (Borrower other than Rents and credit card receivables Rent sent to the Collection Account pursuant to the Loan Agreement (Mortgage) or (and not paid directly to Mortgage Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companiesTenants) and not delivered to Mezzanine 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 (Mortgage) and Loan Documents (Intermediate Mezzanine);
(fg) 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;
(gh) any lossand all liabilities, damageobligations, cost losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, causes of action, suits, claims, demands and adjustments of any nature or expense description whatsoever) which may at any time be imposed upon, incurred by or on behalf awarded against Mezzanine Lender, in the event (and arising out of such circumstances) that (i) Mezzanine Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Mezzanine Lender relative to the Property, the Collateral or any part thereof which is found by a court to have been raised by Mezzanine Borrower in bad faith, (ii) an involuntary case is commenced against Mezzanine Borrower under the Bankruptcy Code with the collusion of Mezzanine Borrower or any of its Affiliates, or (iii) an order for relief is entered with respect to Mezzanine Borrower under the Bankruptcy Code through the actions of Mezzanine Borrower or any of its Affiliates at a time when Mezzanine Borrower is able to pay its debts as they become due, unless Mezzanine Borrower and Guarantor shall have received an opinion of independent counsel that Mezzanine Borrower has a fiduciary duty to seek such an order for relief; and
(i) reasonable attorney’s fees and expenses incurred by Mezzanine Lender by reason in connection with any successful suit filed on account of any of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity foregoing clauses (Intermediate Mezzaninea) concerning environmental laws, hazardous substances and asbestos and any indemnification of Mezzanine Lender with respect thereto;through (h).
Appears in 1 contract
Samples: Mezzanine 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 Mezzanine Loan Documents (Intermediate Mezzanine) to the contrary, there shall at no time be any limitation on Mezzanine Borrower's ’s or any Guarantor's ’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 Pledge and the other Mezzanine Loan Documents (Intermediate Mezzanine)Documents, to Mezzanine Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of 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 RequirementsBorrower;
(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 Mezzanine Loan Documents (Intermediate 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 Loan Agreement (Mortgage);
(c) all loss, damage, cost or expense as incurred by Mezzanine Lender and arising from any membership deposits and intentional misrepresentation of Mortgage Borrower, Mezzanine Borrower or any security deposits and advance deposits which are not delivered to Mortgage 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 thereofMezzanine Borrower;
(d) any misappropriation of Rents or security deposits by Mortgage Borrower, Master Lessee, Mezzanine Borrower or any of their respective Affiliates;
(e) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of all or any part of the Collateral, the Account Collateral (Intermediate Mezzanine) or the Rate Cap Collateral (Intermediate Mezzanine) being encumbered by a Lien by reason of the acts of Mezzanine Borrower or any Affiliate of Mezzanine Borrower from and after the date hereof (other than as provided in this Agreement and Agreement, the PledgePledge and/or any other Mezzanine Loan Document) in violation of the Mezzanine Loan Documents (Intermediate Mezzanine)Documents;
(ef) after the occurrence and during the continuance of an Event of DefaultDefault by Mezzanine Borrower hereunder or under any other Mezzanine Loan Document, any RentsRents belonging to Mortgage Borrower, issues, profits and/or income from the Property collected by Mortgage Borrower, Mezzanine Borrower, Operating Lessee, Borrower or any Affiliate of Mortgage Borrower, Mezzanine Borrower, or Operating Lessee (Borrower other than Rents and credit card receivables Rent sent to the Collection Holding Account pursuant to the Loan Agreement (Mortgage) or (and not paid directly to Mortgage 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 are not applied in a manner permitted under the Loan Documents (Mortgage) and or the Mezzanine Loan Documents (Intermediate Mezzanine)Documents;
(fg) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of any 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;
(gh) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the breach failure of Borrower to comply with any representationof the provisions of Article XIII;
(i) any loss, warrantydamage, covenant cost or indemnification provision in the Environmental Indemnity (Intermediate Mezzanine) concerning environmental laws, hazardous substances and asbestos and any indemnification expense incurred by or on behalf of Mezzanine Lender by reason of any breach of a representation by Mortgage Borrower set forth in Section 4.1.31 of the Loan Agreement (Mortgage).
(j) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the failure of Mezzanine Borrower to deliver to Mezzanine Lender the net sales proceeds of a Transfer of an Individual Property together with any shortfall necessary to pay in full the Release Price for such Individual Property in accordance with the provisions set forth herein;
(k) any loss, damage, cost, or expense incurred by or on behalf of Mezzanine Lender arising from any misrepresentation of Mezzanine Borrower in Section 4.1.6 (c) or (d) to the extent Mezzanine Lender claims or asserts such amounts are covered or insured by the Mortgage Borrower’s owner’s title policy or the Owner’s Title Policy Loss Payment Direction Letter;
(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 Mezzanine Lender, in the event (and arising out of such circumstances) that (x) Mezzanine Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Mezzanine 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 Mezzanine Borrower in bad faith or to be without basis in fact or law, or (y) an involuntary case is commenced against Mezzanine Borrower or Guarantor under the Bankruptcy Code with the collusion of Mezzanine Borrower or Guarantor or any of their Affiliates or (z) an order for relief is entered with respect theretoto the Mezzanine Borrower or Guarantor under the Bankruptcy Code through the actions of the Mezzanine Borrower or Guarantor or any of their Affiliates at a time when the Mezzanine Borrower or Guarantor, as applicable, is able to pay its debts as they become due unless Mezzanine Borrower or Guarantor, as applicable, shall have (i) received an opinion of independent counsel that the Mezzanine Borrower or Guarantor or such Affiliate, as applicable, has a fiduciary duty to seek such an order for relief;
(m) all liabilities, obligations, claims, damages, loss, penalties, costs and expenses imposed upon, incurred by or asserted against Mezzanine Lender or any Ground Lease 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 the term “Deficient GL Property”, the recourse liability of Mezzanine Borrower under the Clean Borrower Estoppel Certificate and the recourse liability of Mezzanine 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 Mezzanine Borrower, Mezzanine Lender shall promptly confirm any such release in writing); or
(n) reasonable attorney’s fees and expenses actually incurred by Mezzanine Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (m).
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Toys R Us Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents (Intermediate Senior Mezzanine) to the contrary, there shall at no time be 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 Pledge and the other Loan Documents (Intermediate Senior 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 (Intermediate Senior 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 Loan 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 Collateral, the Account Collateral (Intermediate Mezzanine) or the Rate Cap Collateral (Intermediate Mezzanine) being encumbered by a Lien (other than this Agreement and the Pledge) in violation of the Loan Documents (Intermediate 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, or any Affiliate of Mortgage Borrower, Mezzanine Borrower, or Operating Lessee (other than Rents and credit card receivables sent to the 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 Documents (Mortgage) and Loan Documents (Intermediate 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 (Intermediate Mezzanine) concerning environmental laws, hazardous substances and asbestos and any indemnification of Mezzanine Lender with respect thereto;
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 (Intermediate Mezzanine) to the contrary, there shall at no time be 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 Pledge and the other Loan Documents (Intermediate Mezzanine), to Mezzanine Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the fraudulent acts of Mezzanine Borrower, Mortgage 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 RequirementsGuarantor;
(b) Proceeds which Mortgage Borrower, any Affiliate of Mortgage Borrower, Mezzanine Borrower or any Affiliate of Mezzanine Borrower Guarantor has received and to which Mezzanine Lender is entitled pursuant to the terms of this Agreement or any of the Loan Documents (Intermediate 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 a manner permitted by the Loan Agreement (Mortgage) or the other Loan Documents (Mortgage);
(c) all loss, damage, cost or expense as incurred by Mezzanine Lender and arising from any membership deposits and any security deposits and advance deposits which are not delivered to intentional misrepresentation of Mortgage Lender upon a foreclosure of the Property Borrower, Mezzanine Borrower 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 thereofGuarantor;
(d) any knowing misappropriation of Rents or security deposits by Mortgage Borrower, any Affiliate of Mortgage Borrower, Mezzanine Borrower or any Affiliate of Mezzanine Borrower;
(e) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of all or any part of the Collateral, the Account Collateral (Intermediate Mezzanine) or the Rate Cap Collateral (Intermediate Mezzanine) being encumbered by a Lien (other than this Agreement and or the Pledge) intentionally granted by Mezzanine Borrower in violation of the Loan Documents (Intermediate Mezzanine)) through the execution of an instrument or agreement;
(ef) after the occurrence and during the continuance of an Event of DefaultDefault by Mezzanine Borrower hereunder or under any other Loan Document (Mezzanine), any Rents, issues, profits and/or income collected by Mortgage Borrower, Mezzanine Borrower, Operating Lessee, Borrower or any Affiliate of Mortgage Borrower, Mezzanine Borrower, or Operating Lessee Guarantor (other than Rents and credit card receivables the Rent sent to the 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 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 (Mortgage) and Loan Documents (Intermediate Mezzanine);
(fg) 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;Guarantor; and
(gh) any loss, damage, cost or expense reasonable attorney's fees and expenses incurred by or on behalf of Mezzanine Lender by reason in connection with any successful suit filed on account of any of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity foregoing clauses (Intermediate Mezzaninea) concerning environmental laws, hazardous substances and asbestos and any indemnification of Mezzanine Lender with respect thereto;through (g).
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Maguire Properties Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Mezzanine Loan Documents (Intermediate Mezzanine) to the contrary, there shall at no time be any limitation on Mezzanine Borrower's ’s or any Guarantor's ’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 NoteNotes, the Pledge and the other Mezzanine Loan Documents (Intermediate Mezzanine)Documents, to Mezzanine Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the fraudulent acts of Mezzanine Borrower or intentional misrepresentations by Borrower, Senior Mezzanine Borrower, Mortgage Borrower or any Affiliate of Mezzanine Borrower and/or (ii) the failure of Borrower, Senior Mezzanine Borrower, or 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 RequirementsBorrower;
(b) Proceeds which Mortgage Mezzanine Borrower, any Affiliate of Mortgage Senior Mezzanine Borrower, Mezzanine Mortgage Borrower or any Affiliate of Mezzanine Borrower, Senior Mezzanine Borrower or Mortgage Borrower has received and to which Mezzanine Lender, Senior Mezzanine Lender, or Mortgage Lender (as applicable) is entitled pursuant to the terms of this Agreement, the Loan Agreement (Mortgage), the Senior Mezzanine Loan Agreement or any of the Mezzanine Loan Documents, Senior Mezzanine Loan Documents or Loan Documents (Intermediate MezzanineMortgage) to the extent the same have not been (i) applied toward payment of the IndebtednessIndebtedness or the Mortgage Loan or Senior Mezzanine Loan (as applicable), or (ii) used for the repair or replacement of the Property Property, all in accordance with the Loan Agreement (Mortgage)provisions of this Agreement;
(c) all loss, damage, cost or expense as incurred by Mezzanine Lender and arising from any membership deposits and intentional misrepresentation of Mezzanine Borrower, Senior Mezzanine Borrower, Mortgage Borrower or any security deposits and advance deposits which are not delivered to Affiliate of Mezzanine Borrower, Senior Mezzanine Borrower or 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 thereofBorrower;
(d) any misappropriation of Rents or security deposits or other funds relating to the Properties or Receipts relating to Ownership Interests or Senior Mezzanine Ownership Interests by Master Lessee, Mortgage Borrower, Senior Mezzanine Borrower, Mezzanine Borrower or any of their respective Affiliates;
(e) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of all or any part of the CollateralProperty, the Account Collateral (Intermediate Second Mezzanine) or ), the Rate Cap Collateral (Intermediate Second Mezzanine) ), the Collateral or the Senior Mezzanine Collateral being encumbered by a Lien or Transferred by reason of the acts of Mezzanine Borrower, Mortgage Borrower, Senior Mezzanine Borrower, or any Affiliate of Mezzanine Borrower, Senior Mezzanine Borrower, or Mortgage Borrower from and after the date hereof (other than as provided in this Agreement and the PledgePledge and any other Mezzanine Document) in violation of the Mezzanine Loan Documents (Intermediate Mezzanine)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 Mortgage Borrower, Mezzanine Borrower, Operating LesseeSenior Mezzanine Borrower, Mortgage Borrower or any Affiliate of Mortgage Mezzanine Borrower, Senior Mezzanine Borrower, or Operating Lessee Mortgage Borrower (other than Rents and credit card receivables Rent sent to the Collection Holding Account pursuant to the Loan Agreement (Mortgage) or and not paid directly to Mortgage 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 (Mortgage), Obligations (Senior Mezzanine) or Obligations (Second Mezzanine), as applicable, or used to pay normal and verifiable Operating Expenses operating expenses of the Property or otherwise are not applied in a manner permitted under the Mezzanine Loan Documents (Mortgage) and Loan Documents (Intermediate 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 BorrowerDocuments;
(g) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of any physical damage to the breach Property from intentional waste or other willful destruction (other than in connection with a permitted alteration) committed by Mortgage Borrower, Senior Mezzanine Borrower, Mezzanine Borrower or any of their respective Affiliates;
(h) any representationloss, warrantydamage, covenant cost or indemnification provision in the Environmental Indemnity (Intermediate Mezzanine) concerning environmental laws, hazardous substances and asbestos and any indemnification expense incurred by or on behalf of Mezzanine Lender by reason of the failure of Mezzanine Borrower to comply with respect theretoany of the provisions of Article XII;
(i) any loss, damage, cost or expense incurred by or on behalf of Mezzanine 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 5.2.19;
(j) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the failure of Mezzanine Borrower to deliver to Mezzanine 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 Combined Release Price for such Individual Property, in accordance with the provisions of Section 2.3.4;
(k) all of the Indebtedness and the Obligations (Second Mezzanine) 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 any 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 such 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 Mezzanine Lender, in the event (and arising out of such circumstances) that Mezzanine Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Mezzanine Lender relative to the Collateral, the Account Collateral (Second Mezzanine) or the Rate Cap Collateral (Second Mezzanine) or any part thereof which is found by a court to have been raised by Mezzanine Borrower in bad faith or to be without basis in fact or law;
(m) reasonable attorney’s fees and expenses actually incurred by Mezzanine Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (l) or clause (n) below; or
(n) after the occurrence and during the continuance of an Event of Default, any Receipts from the Ownership Interests collected by Mezzanine Borrower or any Affiliate of Mezzanine Borrower (other than Receipts sent to the Mezzanine Account and not paid directly to Mezzanine Lender) and not paid to Mezzanine Lender or applied to the payment of the Obligations (Second Mezzanine).
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Mezzanine Loan Documents (Intermediate Mezzanine) to the contrary, there shall at no time be any limitation on Mezzanine Borrower's ’s or any Guarantor's ’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 NoteNotes, the Pledge and the other Mezzanine Loan Documents (Intermediate Mezzanine)Documents, to Mezzanine Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the fraudulent acts of Mezzanine Borrower or intentional misrepresentations by Mezzanine Borrower, Mortgage Borrower or any Affiliate of Mezzanine Borrower and/or (ii) the failure of or 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 RequirementsBorrower;
(b) Proceeds which Mortgage Mezzanine Borrower, any Affiliate of Mortgage Borrower, Mezzanine Borrower or any Affiliate of Mezzanine Borrower or Mortgage Borrower has received and to which Mezzanine Lender or Mortgage Lender (as applicable) is entitled pursuant to the terms of this Agreement, the Loan Agreement (Mortgage) or any of the Mezzanine Loan Documents or Loan Documents (Intermediate MezzanineMortgage) to the extent the same have not been (i) applied toward payment of the IndebtednessIndebtedness or the Mortgage Loan (as applicable), or (ii) used for the repair or replacement of the Property Property, all in accordance with the Loan Agreement (Mortgage)provisions of this Agreement;
(c) all loss, damage, cost or expense as incurred by Mezzanine Lender and arising from any membership deposits and intentional misrepresentation of Mezzanine Borrower, Mortgage Borrower or any security deposits and advance deposits which are not delivered to Affiliate of Mezzanine Borrower or 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 thereofBorrower;
(d) any misappropriation of Rents or security deposits or other funds relating to the Properties or Receipts relating to Ownership Interests by Master Lessee, Mortgage Borrower, Mezzanine Borrower or any of their respective Affiliates;
(e) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of all or any part of the CollateralProperty, the Account Collateral (Intermediate First Mezzanine) or ), the Rate Cap Collateral (Intermediate First Mezzanine) or the Collateral being encumbered by a Lien or Transferred by reason of the acts of Mezzanine Borrower, Mortgage Borrower or any Affiliate of Mezzanine Borrower or Mortgage Borrower from and after the date hereof (other than as provided in this Agreement and the PledgePledge and any other Mezzanine Document) in violation of the Mezzanine Loan Documents (Intermediate Mezzanine)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 Mortgage Borrower, Mezzanine Borrower, Operating Lessee, Mortgage Borrower or any Affiliate of Mezzanine Borrower or Mortgage Borrower, Mezzanine Borrower, or Operating Lessee Borrower (other than Rents and credit card receivables Rent sent to the Collection Holding Account pursuant to the Loan Agreement (Mortgage) or and not paid directly to Mortgage 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 (Mortgage) or Obligations (First Mezzanine), as applicable, or used to pay normal and verifiable Operating Expenses operating expenses of the Property or otherwise are not applied in a manner permitted under the Mezzanine Loan Documents (Mortgage) and Loan Documents (Intermediate 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 BorrowerDocuments;
(g) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of any physical damage to the breach Property from intentional waste or other willful destruction (other than in connection with a permitted alteration) committed by Mortgage Borrower, Mezzanine Borrower or any of their respective Affiliates;
(h) any representationloss, warrantydamage, covenant cost or indemnification provision in the Environmental Indemnity (Intermediate Mezzanine) concerning environmental laws, hazardous substances and asbestos and any indemnification expense incurred by or on behalf of Mezzanine Lender by reason of the failure of Mezzanine Borrower to comply with respect theretoany of the provisions of Article XII;
(i) any loss, damage, cost or expense incurred by or on behalf of Mezzanine 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 5.2.19;
(j) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the failure of Mezzanine Borrower to deliver to Mezzanine 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 Combined Release Price for such Individual Property, in accordance with the provisions of Section 2.3.4;
(k) all of the Indebtedness and the Obligations (First Mezzanine) 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 any 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 such 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 Mezzanine Lender, in the event (and arising out of such circumstances) that Mezzanine Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Mezzanine Lender relative to the Collateral, the Account Collateral (First Mezzanine) or the Rate Cap Collateral (First Mezzanine) or any part thereof which is found by a court to have been raised by Mezzanine Borrower in bad faith or to be without basis in fact or law;
(m) reasonable attorney’s fees and expenses actually incurred by Mezzanine Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (l) or clause (n) below; or
(n) after the occurrence and during the continuance of an Event of Default, any Receipts from the Ownership Interests collected by Mezzanine Borrower or any Affiliate of Mezzanine Borrower (other than Receipts sent to the Mezzanine Account and not paid directly to Mezzanine Lender) and not paid to Mezzanine Lender or applied to the payment of the Obligations (First Mezzanine).
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Mezzanine Loan Documents (Intermediate Mezzanine) to the contrary, there shall at no time be any limitation on Mezzanine Borrower's ’s or any Guarantor's ’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 Pledge and the other Mezzanine Loan Documents (Intermediate Mezzanine)Documents, to Mezzanine Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of 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 RequirementsBorrower;
(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 Mezzanine Loan Documents (Intermediate 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 Loan Agreement (Mortgage);
(c) all loss, damage, cost or expense as incurred by Mezzanine Lender and arising from any membership deposits and intentional misrepresentation of Mortgage Borrower, Mezzanine Borrower or any security deposits and advance deposits which are not delivered to Mortgage 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 thereofMezzanine Borrower;
(d) any misappropriation of Rents or security deposits by Mortgage Borrower, Master Lessee, Mezzanine Borrower or any of their respective Affiliates;
(e) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of all or any part of the Collateral, the Account Collateral (Intermediate Mezzanine) or the Rate Cap Collateral (Intermediate Mezzanine) being encumbered by a Lien by reason of the acts of Mezzanine Borrower or any Affiliate of Mezzanine Borrower from and after the date hereof (other than as provided in this Agreement and Agreement, the PledgePledge and/or any other Mezzanine Loan Document) in violation of the Mezzanine Loan Documents (Intermediate Mezzanine)Documents;
(ef) after the occurrence and during the continuance of an Event of DefaultDefault by Mezzanine Borrower hereunder or under any other Mezzanine Loan Document, any RentsRents belonging to Mortgage Borrower, issues, profits and/or income from the Property collected by Mortgage Borrower, Mezzanine Borrower, Operating Lessee, Borrower or any Affiliate of Mortgage Borrower, Mezzanine Borrower, or Operating Lessee (Borrower other than Rents and credit card receivables Rent sent to the Collection Holding Account pursuant to the Loan Agreement (Mortgage) or (and not paid directly to Mortgage 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 are not applied in a manner permitted under the Loan Documents (Mortgage) and or the Mezzanine Loan Documents (Intermediate Mezzanine)Documents;
(fg) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of any 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;
(gh) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the breach failure of Borrower to comply with any representationof the provisions of Article XII;
(i) any loss, warrantydamage, covenant cost or indemnification provision in the Environmental Indemnity (Intermediate Mezzanine) concerning environmental laws, hazardous substances and asbestos and any indemnification expense incurred by or on behalf of Mezzanine Lender by reason of any breach of a representation by Mortgage Borrower set forth in Section 4.1.31 of the Loan Agreement (Mortgage).
(j) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the failure of Mezzanine Borrower to deliver to Mezzanine Lender the net sales proceeds of a Transfer of an Individual Property together with any shortfall necessary to pay in full the Release Price for such Individual Property in accordance with the provisions set forth herein;
(k) any loss, damage, cost, or expense incurred by or on behalf of Mezzanine Lender arising from any misrepresentation of Mezzanine Borrower in Section 4.1.6 (c) or (d) to the extent Mezzanine Lender claims or asserts such amounts are covered or insured by the Mortgage Borrower’s owner’s title policy or the Owner’s Title Policy Loss Payment Direction Letter;
(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 Mezzanine Lender, in the event (and arising out of such circumstances) that (x) Mezzanine Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Mezzanine 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 Mezzanine Borrower in bad faith or to be without basis in fact or law, or (y) an involuntary case is commenced against Mezzanine Borrower or Guarantor under the Bankruptcy Code with the collusion of Mezzanine Borrower or Guarantor or any of their Affiliates or (z) an order for relief is entered with respect theretoto the Mezzanine Borrower or Guarantor under the Bankruptcy Code through the actions of the Mezzanine Borrower or Guarantor or any of their Affiliates at a time when the Mezzanine Borrower or Guarantor, as applicable, is able to pay its debts as they become due unless Mezzanine Borrower or Guarantor, as applicable, shall have (i) received an opinion of independent counsel that the Mezzanine Borrower or Guarantor or such Affiliate, as applicable, has a fiduciary duty to seek such an order for relief;
(m) all liabilities, obligations, claims, damages, loss, penalties, costs and expenses imposed upon, incurred by or asserted against Mezzanine Lender or any Ground Lease 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 the term “Deficient GL Property”, the recourse liability of Mezzanine Borrower under the Clean Borrower Estoppel Certificate and the recourse liability of Mezzanine Borrower and Guarantor under this clause (m) shall be automatically released in its entirety 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 Mezzanine Borrower, Mezzanine Lender shall promptly confirm any such release in writing); or
(n) reasonable attorney’s fees and expenses actually incurred by Mezzanine Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (m).
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Toys R Us Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Mezzanine Loan Documents (Intermediate Mezzanine) to the contrary, there shall at no time be any limitation on Mezzanine Borrower's ’s or any Guarantor's ’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 Pledge and the other Mezzanine Loan Documents (Intermediate Mezzanine)Documents, to Mezzanine Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of 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 RequirementsBorrower;
(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 Mezzanine Loan Documents (Intermediate 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 Loan Agreement (Mortgage);
(c) all loss, damage, cost or expense as incurred by Mezzanine Lender and arising from any membership deposits and intentional misrepresentation of Mortgage Borrower, Mezzanine Borrower or any security deposits and advance deposits which are not delivered to Mortgage 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 thereofMezzanine Borrower;
(d) any misappropriation of Rents or security deposits by Mortgage Borrower, Master Lessee, Mezzanine Borrower or any of their respective Affiliates;
(e) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of all or any part of the Collateral, the Account Collateral (Intermediate Mezzanine) or the Rate Cap Collateral (Intermediate Mezzanine) being encumbered by a Lien by reason of the acts of Mezzanine Borrower or any Affiliate of Mezzanine Borrower from and after the date hereof (other than as provided in this Agreement and Agreement, the PledgePledge and/or any other Mezzanine Loan Document) in violation of the Mezzanine Loan Documents (Intermediate Mezzanine)Documents;
(ef) after the occurrence and during the continuance of an Event of DefaultDefault by Mezzanine Borrower hereunder or under any other Mezzanine Loan Document, any RentsRents belonging to Mortgage Borrower or any Senior Mezzanine Borrower, issues, profits and/or income from the Property collected by Mortgage Borrower, Mezzanine Borrower, Operating Lessee, Borrower or any Affiliate of Mortgage Borrower, Mezzanine Borrower, or Operating Lessee (Borrower other than Rents and credit card receivables Rent sent to the Collection Holding Account pursuant to the Loan Agreement (Mortgage) or (and not paid directly to Mortgage 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 are not applied in a manner permitted under the Loan Documents (Mortgage) and or the Mezzanine Loan Documents (Intermediate Mezzanine)Documents;
(fg) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of any 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;
(gh) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the breach failure of Borrower to comply with any representationof the provisions of Article XII;
(i) any loss, warrantydamage, covenant cost or indemnification provision in the Environmental Indemnity (Intermediate Mezzanine) concerning environmental laws, hazardous substances and asbestos and any indemnification expense incurred by or on behalf of Mezzanine Lender by reason of any breach of a representation by Mortgage Borrower set forth in Section 4.1.31 of the Loan Agreement (Mortgage);
(j) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the failure of Mezzanine Borrower to deliver to Mezzanine Lender the net sales proceeds of a Transfer of an Individual Property together with any shortfall necessary to pay in full the Release Price for such Individual Property in accordance with the provisions set forth herein;
(k) any loss, damage, cost, or expense incurred by or on behalf of Mezzanine Lender arising from any misrepresentation of Mezzanine Borrower in Section 4.1.6 (c) or (d) to the extent Mezzanine Lender claims or asserts such amounts are covered or insured by the Mortgage Borrower’s owner’s title policy or the Owner’s Title Policy Loss Payment Direction Letter;
(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 Mezzanine Lender, in the event (and arising out of such circumstances) that (x) Mezzanine Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Mezzanine 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 Mezzanine Borrower in bad faith or to be without basis in fact or law, or (y) an involuntary case is commenced against Mezzanine Borrower or Guarantor under the Bankruptcy Code with the collusion of Mezzanine Borrower or Guarantor or any of their Affiliates or (z) an order for relief is entered with respect theretoto the Mezzanine Borrower or Guarantor under the Bankruptcy Code through the actions of the Mezzanine Borrower or Guarantor or any of their Affiliates at a time when the Mezzanine Borrower or Guarantor, as applicable, is able to pay its debts as they become due unless Mezzanine Borrower or Guarantor, as applicable, shall have (i) received an opinion of independent counsel that the Mezzanine Borrower or Guarantor or such Affiliate, as applicable, has a fiduciary duty to seek such an order for relief;
(m) all liabilities, obligations, claims, damages, loss, penalties, costs and expenses imposed upon, incurred by or asserted against Mezzanine Lender or any Ground Lease 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 the term “Deficient GL Property”, the recourse liability of Mezzanine Borrower under the Clean Borrower Estoppel Certificate and the recourse liability of Mezzanine Borrower and Guarantor under this clause (m) shall be automatically released in its entirety 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 Mezzanine Borrower, Mezzanine Lender shall promptly confirm any such release in writing); or
(n) reasonable attorney’s fees and expenses actually incurred by Mezzanine Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (m).
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Toys R Us Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Mezzanine Loan Documents (Intermediate Mezzanine) to the contrary, there shall at no time be any limitation on Mezzanine Borrower's ’s or any Guarantor's ’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 NoteNotes, the Pledge Pledge, and the other Mezzanine Loan Documents (Intermediate Mezzanine)Documents, to Mezzanine Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the fraudulent acts of Mezzanine Borrower or intentional misrepresentations by Borrower, any Senior Mezzanine Borrower, Mortgage Borrower or any Affiliate of Mezzanine Borrower and/or (ii) the failure of Borrower, any Senior Mezzanine Borrower, or 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 RequirementsBorrower;
(b) Proceeds which Mortgage Mezzanine Borrower, any Affiliate of Mortgage Senior Mezzanine Borrower, Mezzanine Mortgage Borrower or any Affiliate of Mezzanine Borrower, any Senior Mezzanine Borrower or Mortgage Borrower has received and to which Mezzanine Lender, any Senior Mezzanine Lender, or Mortgage Lender (as applicable) is entitled pursuant to the terms of this Agreement, the Loan Agreement (Mortgage), the Senior Mezzanine Loan Agreements or any of the Mezzanine Loan Documents, Senior Mezzanine Loan Documents or Loan Documents (Intermediate MezzanineMortgage) to the extent the same have not been (i) applied toward payment of the IndebtednessIndebtedness or the Mortgage Loan or Senior Mezzanine Loans (as applicable), or (ii) used for the repair or replacement of the Property Property, all in accordance with the Loan Agreement (Mortgage)provisions of this Agreement;
(c) all loss, damage, cost or expense as incurred by Mezzanine Lender and arising from any membership deposits and intentional misrepresentation of Mezzanine Borrower, any security deposits and advance deposits which are not delivered to Senior Mezzanine Borrower, Mortgage Lender upon a foreclosure Borrower or any Affiliate of the Property Mezzanine Borrower, any Senior Mezzanine Borrower 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 thereofMortgage Borrower;
(d) any misappropriation of Rents or security deposits or other funds relating to the Properties or Receipts relating to Ownership Interests, or Senior Mezzanine Ownership Interests by Master Lessee, Mortgage Borrower, any Senior Mezzanine Borrower, Mezzanine Borrower or any of their respective Affiliates;
(e) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of all or any part of the CollateralProperty, the Account Collateral (Intermediate Third Mezzanine) or ), the Rate Cap Collateral (Intermediate Third Mezzanine) ), the Collateral or the Senior Mezzanine Collateral being encumbered by a Lien or Transferred by reason of the acts of Mezzanine Borrower, Mortgage Borrower, any Senior Mezzanine Borrower, or any Affiliate of Mezzanine Borrower, any Senior Mezzanine Borrower, or Mortgage Borrower from and after the date hereof (other than as provided in this Agreement and the Pledge, and any other Mezzanine Document) in violation of the Mezzanine Loan Documents (Intermediate Mezzanine)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 Mortgage Borrower, Mezzanine Borrower, Operating Lesseeany Senior Mezzanine Borrower, Mortgage Borrower or any Affiliate of Mortgage Mezzanine Borrower, any Senior Mezzanine Borrower, or Operating Lessee Mortgage Borrower (other than Rents and credit card receivables Rent sent to the Collection Holding Account pursuant to the Loan Agreement (Mortgage) or and not paid directly to Mortgage 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 (Mortgage), Obligations (Senior Mezzanine) or Obligations (Third Mezzanine), as applicable, or used to pay normal and verifiable Operating Expenses operating expenses of the Property or otherwise are not applied in a manner permitted under the Mezzanine Loan Documents (Mortgage) and Loan Documents (Intermediate 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 BorrowerDocuments;
(g) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of any physical damage to the breach Property from intentional waste or other willful destruction (other than in connection with a permitted alteration) committed by Mortgage Borrower, any Senior Mezzanine Borrower, Mezzanine Borrower or any of their respective Affiliates;
(h) any representationloss, warrantydamage, covenant cost or indemnification provision in the Environmental Indemnity (Intermediate Mezzanine) concerning environmental laws, hazardous substances and asbestos and any indemnification expense incurred by or on behalf of Mezzanine Lender by reason of the failure of Mezzanine Borrower to comply with respect theretoany of the provisions of Article XII;
(i) any loss, damage, cost or expense incurred by or on behalf of Mezzanine 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 5.2.19;
(j) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the failure of Mezzanine Borrower to deliver to Mezzanine 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 Combined Release Price for such Individual Property, in accordance with the provisions of Section 2.3.4;
(k) all of the Indebtedness and the Obligations (Third Mezzanine) 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 any 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 such 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 Mezzanine Lender, in the event (and arising out of such circumstances) that Mezzanine Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Mezzanine Lender relative to the Collateral, the Account Collateral (Third Mezzanine) or the Rate Cap Collateral (Third Mezzanine) or any part thereof which is found by a court to have been raised by Mezzanine Borrower in bad faith or to be without basis in fact or law;
(m) reasonable attorney’s fees and expenses actually incurred by Mezzanine Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (l) or clause (n) below; or
(n) after the occurrence and during the continuance of an Event of Default, any Receipts from the Ownership Interests collected by Mezzanine Borrower or any Affiliate of Mezzanine Borrower (other than Receipts sent to the Mezzanine Account and not paid directly to Mezzanine Lender) and not paid to Mezzanine Lender or applied to the payment of the Obligations (Third Mezzanine).
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Mezzanine Loan Documents (Intermediate Mezzanine) to the contrary, there shall at no time be any limitation on Mezzanine Borrower's ’s or any Guarantor's ’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 Pledge and the other Mezzanine Loan Documents (Intermediate Mezzanine)Documents, to Mezzanine Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of 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 RequirementsBorrower;
(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 Mezzanine Loan Documents (Intermediate 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 Loan Agreement (Mortgage);
(c) all loss, damage, cost or expense as incurred by Mezzanine Lender and arising from any membership deposits and intentional misrepresentation of Mortgage Borrower, Mezzanine Borrower or any security deposits and advance deposits which are not delivered to Mortgage 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 thereofMezzanine Borrower;
(d) any misappropriation of Rents or security deposits by Mortgage Borrower, Master Lessee, Mezzanine Borrower or any of their respective Affiliates;
(e) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of all or any part of the Collateral, the Account Collateral (Intermediate Mezzanine) or the Rate Cap Collateral (Intermediate Mezzanine) being encumbered by a Lien by reason of the acts of Mezzanine Borrower or any Affiliate of Mezzanine Borrower from and after the date hereof (other than as provided in this Agreement and Agreement, the PledgePledge and/or any other Mezzanine Loan Document) in violation of the Mezzanine Loan Documents (Intermediate Mezzanine)Documents;
(ef) after the occurrence and during the continuance of an Event of DefaultDefault by Mezzanine Borrower hereunder or under any other Mezzanine Loan Document, any RentsRents belonging to Mortgage Borrower or any Senior Mezzanine Borrower, issues, profits and/or income from the Property collected by Mortgage Borrower, Mezzanine Borrower, Operating Lessee, Borrower or any Affiliate of Mortgage Borrower, Mezzanine Borrower, or Operating Lessee (Borrower other than Rents and credit card receivables Rent sent to the Collection Holding Account pursuant to the Loan Agreement (Mortgage) or (and not paid directly to Mortgage 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 are not applied in a manner permitted under the Loan Documents (Mortgage) and or the Mezzanine Loan Documents (Intermediate Mezzanine)Documents;
(fg) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of any 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;
(gh) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the breach failure of Borrower to comply with any representationof the provisions of Article XIII;
(i) any loss, warrantydamage, covenant cost or indemnification provision in the Environmental Indemnity (Intermediate Mezzanine) concerning environmental laws, hazardous substances and asbestos and any indemnification expense incurred by or on behalf of Mezzanine Lender by reason of any breach of a representation by Mortgage Borrower set forth in Section 4.1.31 of the Loan Agreement (Mortgage).
(j) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the failure of Mezzanine Borrower to deliver to Mezzanine Lender the net sales proceeds of a Transfer of an Individual Property together with any shortfall necessary to pay in full the Release Price for such Individual Property in accordance with the provisions set forth herein;
(k) any loss, damage, cost, or expense incurred by or on behalf of Mezzanine Lender arising from any misrepresentation of Mezzanine Borrower in Section 4.1.6 (c) or (d) to the extent Mezzanine Lender claims or asserts such amounts are covered or insured by the Mortgage Borrower’s owner’s title policy or the Owner’s Title Policy Loss Payment Direction Letter;
(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 Mezzanine Lender, in the event (and arising out of such circumstances) that (x) Mezzanine Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Mezzanine 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 Mezzanine Borrower in bad faith or to be without basis in fact or law, or (y) an involuntary case is commenced against Mezzanine Borrower or Guarantor under the Bankruptcy Code with the collusion of Mezzanine Borrower or Guarantor or any of their Affiliates or (z) an order for relief is entered with respect theretoto the Mezzanine Borrower or Guarantor under the Bankruptcy Code through the actions of the Mezzanine Borrower or Guarantor or any of their Affiliates at a time when the Mezzanine Borrower or Guarantor, as applicable, is able to pay its debts as they become due unless Mezzanine Borrower or Guarantor, as applicable, shall have (i) received an opinion of independent counsel that the Mezzanine Borrower or Guarantor or such Affiliate, as applicable, has a fiduciary duty to seek such an order for relief;
(m) reasonable attorney’s fees and expenses actually incurred by Mezzanine Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (l).
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Toys R Us Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Mezzanine Loan Documents (Intermediate Mezzanine) to the contrary, there shall at no time be any limitation on Mezzanine Borrower's ’s or any Guarantor's ’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 NoteNotes, the Pledge Pledge, the Mezzco IV Pledge, and the other Mezzanine Loan Documents (Intermediate Mezzanine)Documents, to Mezzanine Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the fraudulent acts of Mezzanine Borrower or intentional misrepresentations by Borrower, any Senior Mezzanine Borrower, Mortgage Borrower or any Affiliate of Mezzanine Borrower and/or (ii) the failure of Borrower, any Senior Mezzanine Borrower, or 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 RequirementsBorrower;
(b) Proceeds which Mortgage Mezzanine Borrower, any Affiliate of Mortgage Senior Mezzanine Borrower, Mezzanine Mortgage Borrower or any Affiliate of Mezzanine Borrower, any Senior Mezzanine Borrower or Mortgage Borrower has received and to which Mezzanine Lender, any Senior Mezzanine Lender, or Mortgage Lender (as applicable) is entitled pursuant to the terms of this Agreement, the Loan Agreement (Mortgage), the Senior Mezzanine Loan Agreements or any of the Mezzanine Loan Documents, Senior Mezzanine Loan Documents or Loan Documents (Intermediate MezzanineMortgage) to the extent the same have not been (i) applied toward payment of the IndebtednessIndebtedness or the Mortgage Loan or Senior Mezzanine Loans (as applicable), or (ii) used for the repair or replacement of the Property Property, all in accordance with the Loan Agreement (Mortgage)provisions of this Agreement;
(c) all loss, damage, cost or expense as incurred by Mezzanine Lender and arising from any membership deposits and intentional misrepresentation of Mezzanine Borrower, Mortgage Borrower or any security deposits and advance deposits which are not delivered to Affiliate of Mezzanine Borrower, any Senior Mezzanine Borrower or 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 thereofBorrower;
(d) any misappropriation of Rents or security deposits or other funds relating to the Properties or Receipts relating to Ownership Interests, Mezzco III Ownership Interests or Senior Mezzanine Ownership Interests by Master Lessee, Mortgage Borrower, any Senior Mezzanine Borrower, Mezzanine Borrower or any of their respective Affiliates;
(e) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of all or any part of the CollateralProperty, the Account Collateral (Intermediate Third Mezzanine) or the Rate Cap Collateral (Intermediate Third Mezzanine) being encumbered by a Lien or Transferred by reason of the acts of Mezzanine Borrower, Mortgage Borrower, any Senior Mezzanine Borrower, or any Affiliate of Mezzanine Borrower, any Senior Mezzanine Borrower, or Mortgage Borrower from and after the date hereof (other than as provided in this Agreement and the Pledge, the Mezzco IV Pledge, and any other Mezzanine Document) in violation of the Mezzanine Loan Documents (Intermediate Mezzanine)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 Mortgage Borrower, Mezzanine Borrower, Operating Lesseeany Senior Mezzanine Borrower, Mortgage Borrower or any Affiliate of Mortgage Mezzanine Borrower, any Senior Mezzanine Borrower, or Operating Lessee Mortgage Borrower (other than Rents and credit card receivables Rent sent to the Collection Holding Account pursuant to the Loan Agreement (Mortgage) or and not paid directly to Mortgage 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 (Mortgage), Obligations (Senior Mezzanine) or Obligations (Third Mezzanine), as applicable, or used to pay normal and verifiable Operating Expenses operating expenses of the Property or otherwise are not applied in a manner permitted under the Mezzanine Loan Documents (Mortgage) and Loan Documents (Intermediate 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 BorrowerDocuments;
(g) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of any physical damage to the breach Property from intentional waste or other willful destruction (other than in connection with a permitted alteration) committed by Mortgage Borrower, any Senior Mezzanine Borrower, Mezzanine Borrower or any Affiliate of Mezzanine Borrower;
(h) any representationloss, warrantydamage, covenant cost or indemnification provision in the Environmental Indemnity (Intermediate Mezzanine) concerning environmental laws, hazardous substances and asbestos and any indemnification expense incurred by or on behalf of Mezzanine Lender by reason of the failure of Mezzanine Borrower to comply with respect theretoany of the provisions of Article XII;
(i) any loss, damage, cost or expense incurred by or on behalf of Mezzanine 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 Mezzanine Lender by reason of the failure of Mezzanine Borrower to deliver to Mezzanine 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 Combined Release Price for such Individual Property, in accordance with the provisions of Section 2.3.4;
(k) all of the Indebtedness and the Obligations (Third Mezzanine) 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 , any 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, any 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, 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 Mezzanine Lender, in the event (and arising out of such circumstances) that Mezzanine Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Mezzanine Lender relative to the Collateral, the Account Collateral (Third Mezzanine) or the Rate Cap Collateral (Third Mezzanine) or any part thereof which is found by a court to have been raised by Mezzanine Borrower in bad faith or to be without basis in fact or law;
(m) reasonable attorney’s fees and expenses actually incurred by Mezzanine Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (l); or
(n) after the occurrence and during the continuance of an Event of Default, any Receipts from the Ownership Interests collected by Mezzanine Borrower or any Affiliate of Mezzanine Borrower and any Receipts from the Mezz III Ownership Interests collected by Mezzanine Borrower or any Affiliate of Mezzanine Borrower (other than Receipts sent to the Mezzanine Account and not paid directly to Mezzanine Lender) and not paid to Mezzanine Lender or applied to the payment of the Obligations (Third Mezzanine).
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Mezzanine Loan Documents (Intermediate Mezzanine) to the contrary, there shall at no time be any limitation on Mezzanine Borrower's ’s or any Guarantor's ’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 NoteNotes, the Pledge and the other Mezzanine Loan Documents (Intermediate Mezzanine)Documents, to Mezzanine Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the fraudulent acts of Mezzanine Borrower or intentional misrepresentations by Borrower, Senior Mezzanine Borrower, Mortgage Borrower or any Affiliate of Mezzanine Borrower and/or (ii) the failure of Borrower, Senior Mezzanine Borrower, or 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 RequirementsBorrower;
(b) Proceeds which Mortgage Mezzanine Borrower, any Affiliate of Mortgage Senior Mezzanine Borrower, Mezzanine Mortgage Borrower or any Affiliate of Mezzanine Borrower, Senior Mezzanine Borrower or Mortgage Borrower has received and to which Mezzanine Lender, Senior Mezzanine Lender, or Mortgage Lender (as applicable) is entitled pursuant to the terms of this Agreement, the Loan Agreement (Mortgage), the Senior Mezzanine Loan Agreement or any of the Mezzanine Loan Documents, Senior Mezzanine Loan Documents or Loan Documents (Intermediate MezzanineMortgage) to the extent the same have not been (i) applied toward payment of the IndebtednessIndebtedness or the Mortgage Loan or Senior Mezzanine Loan (as applicable), or (ii) used for the repair or replacement of the Property Property, all in accordance with the Loan Agreement (Mortgage)provisions of this Agreement;
(c) all loss, damage, cost or expense as incurred by Mezzanine Lender and arising from any membership deposits and intentional misrepresentation of Mezzanine Borrower, Mortgage Borrower or any security deposits and advance deposits which are not delivered to Affiliate of Mezzanine Borrower, Senior Mezzanine Borrower or 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 thereofBorrower;
(d) any misappropriation of Rents or security deposits or other funds relating to the Properties or Receipts relating to Ownership Interests or Senior Mezzanine Ownership Interests by Master Lessee, Mortgage Borrower, Senior Mezzanine Borrower, Mezzanine Borrower or any of their respective Affiliates;
(e) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of all or any part of the CollateralProperty, the Account Collateral (Intermediate Second Mezzanine) or the Rate Cap Collateral (Intermediate Second Mezzanine) being encumbered by a Lien or Transferred by reason of the acts of Mezzanine Borrower, Mortgage Borrower, Senior Mezzanine Borrower, or any Affiliate of Mezzanine Borrower, Senior Mezzanine Borrower, or Mortgage Borrower from and after the date hereof (other than as provided in this Agreement and the PledgePledge and any other Mezzanine Document) in violation of the Mezzanine Loan Documents (Intermediate Mezzanine)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 Mortgage Borrower, Mezzanine Borrower, Operating LesseeSenior Mezzanine Borrower, Mortgage Borrower or any Affiliate of Mortgage Mezzanine Borrower, Senior Mezzanine Borrower, or Operating Lessee Mortgage Borrower (other than Rents and credit card receivables Rent sent to the Collection Holding Account pursuant to the Loan Agreement (Mortgage) or and not paid directly to Mortgage 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 (Mortgage), Obligations (Senior Mezzanine) or Obligations (Second Mezzanine), as applicable, or used to pay normal and verifiable Operating Expenses operating expenses of the Property or otherwise are not applied in a manner permitted under the Mezzanine Loan Documents (Mortgage) and Loan Documents (Intermediate 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 BorrowerDocuments;
(g) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of any physical damage to the breach Property from intentional waste or other willful destruction (other than in connection with a permitted alteration) committed by Mortgage Borrower, Senior Mezzanine Borrower, Mezzanine Borrower or any Affiliate of Mezzanine Borrower;
(h) any representationloss, warrantydamage, covenant cost or indemnification provision in the Environmental Indemnity (Intermediate Mezzanine) concerning environmental laws, hazardous substances and asbestos and any indemnification expense incurred by or on behalf of Mezzanine Lender by reason of the failure of Mezzanine Borrower to comply with respect theretoany of the provisions of Article XII;
(i) any loss, damage, cost or expense incurred by or on behalf of Mezzanine 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 Mezzanine Lender by reason of the failure of Mezzanine Borrower to deliver to Mezzanine 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 Combined Release Price for such Individual Property, in accordance with the provisions of Section 2.3.4;
(k) all of the Indebtedness and the Obligations (Second Mezzanine) 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 , any 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, any 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, 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 Mezzanine Lender, in the event (and arising out of such circumstances) that Mezzanine Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Mezzanine Lender relative to the Collateral, the Account Collateral (Second Mezzanine) or the Rate Cap Collateral (Second Mezzanine) or any part thereof which is found by a court to have been raised by Mezzanine Borrower in bad faith or to be without basis in fact or law;
(m) reasonable attorney’s fees and expenses actually incurred by Mezzanine Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (l); or
(n) after the occurrence and during the continuance of an Event of Default, any Receipts from the Ownership Interests collected by Mezzanine Borrower or any Affiliate of Mezzanine Borrower (other than Receipts sent to the Mezzanine Account and not paid directly to Mezzanine Lender) and not paid to Mezzanine Lender or applied to the payment of the Obligations (Second Mezzanine).
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Mezzanine Loan Documents (Intermediate Mezzanine) to the contrary, there shall at no time be any limitation on Mezzanine Borrower's ’s or any Guarantor's ’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 Pledge and the other Mezzanine Loan Documents (Intermediate Mezzanine)Documents, to Mezzanine Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of 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 RequirementsBorrower;
(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 Mezzanine Loan Documents (Intermediate 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 Loan Agreement (Mortgage);
(c) all loss, damage, cost or expense as incurred by Mezzanine Lender and arising from any membership deposits and intentional misrepresentation of Mortgage Borrower, Mezzanine Borrower or any security deposits and advance deposits which are not delivered to Mortgage 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 thereofMezzanine Borrower;
(d) any misappropriation of Rents or security deposits by Mortgage Borrower, Master Lessee, Mezzanine Borrower or any of their respective Affiliates;
(e) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of all or any part of the Collateral, the Account Collateral (Intermediate Mezzanine) or the Rate Cap Collateral (Intermediate Mezzanine) being encumbered by a Lien by reason of the acts of Mezzanine Borrower or any Affiliate of Mezzanine Borrower from and after the date hereof (other than as provided in this Agreement and Agreement, the PledgePledge and/or any other Mezzanine Loan Document) in violation of the Mezzanine Loan Documents (Intermediate Mezzanine)Documents;
(ef) after the occurrence and during the continuance of an Event of DefaultDefault by Mezzanine Borrower hereunder or under any other Mezzanine Loan Document, any RentsRents belonging to Mortgage Borrower or any Senior Mezzanine Borrower, issues, profits and/or income from the Property collected by Mortgage Borrower, Mezzanine Borrower, Operating Lessee, Borrower or any Affiliate of Mortgage Borrower, Mezzanine Borrower, or Operating Lessee (Borrower other than Rents and credit card receivables Rent sent to the Collection Holding Account pursuant to the Loan Agreement (Mortgage) or (and not paid directly to Mortgage 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 are not applied in a manner permitted under the Loan Documents (Mortgage) and or the Mezzanine Loan Documents (Intermediate Mezzanine)Documents;
(fg) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of any 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;
(gh) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the breach failure of Borrower to comply with any representationof the provisions of Article XII;
(i) any loss, warrantydamage, covenant cost or indemnification provision in the Environmental Indemnity (Intermediate Mezzanine) concerning environmental laws, hazardous substances and asbestos and any indemnification expense incurred by or on behalf of Mezzanine Lender by reason of any breach of a representation by Mortgage Borrower set forth in Section 4.1.31 of the Loan Agreement (Mortgage);
(j) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the failure of Mezzanine Borrower to deliver to Mezzanine Lender the net sales proceeds of a Transfer of an Individual Property together with any shortfall necessary to pay in full the Release Price for such Individual Property in accordance with the provisions set forth herein;
(k) any loss, damage, cost, or expense incurred by or on behalf of Mezzanine Lender arising from any misrepresentation of Mezzanine Borrower in Section 4.1.6 (c) or (d) to the extent Mezzanine Lender claims or asserts such amounts are covered or insured by the Mortgage Borrower’s owner’s title policy or the Owner’s Title Policy Loss Payment Direction Letter;
(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 Mezzanine Lender, in the event (and arising out of such circumstances) that (x) Mezzanine Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Mezzanine 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 Mezzanine Borrower in bad faith or to be without basis in fact or law, or (y) an involuntary case is commenced against Mezzanine Borrower or Guarantor under the Bankruptcy Code with the collusion of Mezzanine Borrower or Guarantor or any of their Affiliates or (z) an order for relief is entered with respect theretoto the Mezzanine Borrower or Guarantor under the Bankruptcy Code through the actions of the Mezzanine Borrower or Guarantor or any of their Affiliates at a time when the Mezzanine Borrower or Guarantor, as applicable, is able to pay its debts as they become due unless Mezzanine Borrower or Guarantor, as applicable, shall have (i) received an opinion of independent counsel that the Mezzanine Borrower or Guarantor or such Affiliate, as applicable, has a fiduciary duty to seek such an order for relief;
(m) reasonable attorney’s fees and expenses actually incurred by Mezzanine Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (l).
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Toys R Us Inc)
Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Mezzanine Loan Documents (Intermediate Mezzanine) to the contrary, there shall at no time be any limitation on Mezzanine Borrower's ’s or any Guarantor's ’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 NoteNotes, the Pledge Pledge, the Mezzco V Pledge, and the other Mezzanine Loan Documents (Intermediate Mezzanine)Documents, to Mezzanine Lender of:
(a) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the fraudulent acts of Mezzanine Borrower or intentional misrepresentations by Borrower, any Senior Mezzanine Borrower, Mortgage Borrower or any Affiliate of Mezzanine Borrower and/or (ii) the failure of Borrower, any Senior Mezzanine Borrower, or 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 RequirementsBorrower;
(b) Proceeds which Mortgage Mezzanine Borrower, any Affiliate of Mortgage Senior Mezzanine Borrower, Mezzanine Mortgage Borrower or any Affiliate of Mezzanine Borrower, any Senior Mezzanine Borrower or Mortgage Borrower has received and to which Mezzanine Lender, any Senior Mezzanine Lender, or Mortgage Lender (as applicable) is entitled pursuant to the terms of this Agreement, the Loan Agreement (Mortgage), the Senior Mezzanine Loan Agreements or any of the Mezzanine Loan Documents, Senior Mezzanine Loan Documents or Loan Documents (Intermediate MezzanineMortgage) to the extent the same have not been (i) applied toward payment of the IndebtednessIndebtedness or the Mortgage Loan or Senior Mezzanine Loans (as applicable), or (ii) used for the repair or replacement of the Property Property, all in accordance with the Loan Agreement (Mortgage)provisions of this Agreement;
(c) all loss, damage, cost or expense as incurred by Mezzanine Lender and arising from any membership deposits and intentional misrepresentation of Mezzanine Borrower, any security deposits and advance deposits which are not delivered to Senior Mezzanine Borrower, Mortgage Lender upon a foreclosure Borrower or any Affiliate of the Property Mezzanine Borrower, any Senior Mezzanine Borrower 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 thereofMortgage Borrower;
(d) any misappropriation of Rents or security deposits or other funds relating to the Properties or Receipts relating to Ownership Interests, Mezzco IV Ownership Interests or Senior Mezzanine Ownership Interests by Master Lessee, Mortgage Borrower, any Senior Mezzanine Borrower, Mezzanine Borrower or any of their respective Affiliates;
(e) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of all or any part of the CollateralProperty, the Account Collateral (Intermediate Fourth Mezzanine) or the Rate Cap Collateral (Intermediate Fourth Mezzanine) ), the Collateral or the Senior Mezzanine Collateral being encumbered by a Lien or Transferred by reason of the acts of Mezzanine Borrower, Mortgage Borrower, any Senior Mezzanine Borrower, or any Affiliate of Mezzanine Borrower, any Senior Mezzanine Borrower, or Mortgage Borrower from and after the date hereof (other than as provided in this Agreement and the Pledge, the Mezzco V Pledge, and any other Mezzanine Document) in violation of the Mezzanine Loan Documents (Intermediate Mezzanine)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 Mortgage Borrower, Mezzanine Borrower, Operating Lesseeany Senior Mezzanine Borrower, Mortgage Borrower or any Affiliate of Mortgage Mezzanine Borrower, any Senior Mezzanine Borrower, or Operating Lessee Mortgage Borrower (other than Rents and credit card receivables Rent sent to the Collection Holding Account pursuant to the Loan Agreement (Mortgage) or and not paid directly to Mortgage 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 (Mortgage), Obligations (Senior Mezzanine) or Obligations (Fourth Mezzanine), as applicable, or used to pay normal and verifiable Operating Expenses operating expenses of the Property or otherwise are not applied in a manner permitted under the Mezzanine Loan Documents (Mortgage) and Loan Documents (Intermediate 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 BorrowerDocuments;
(g) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of any physical damage to the breach Property from intentional waste or other willful destruction (other than in connection with a permitted alteration) committed by Mortgage Borrower, any Senior Mezzanine Borrower, Mezzanine Borrower or any of their respective Affiliates;
(h) any representationloss, warrantydamage, covenant cost or indemnification provision in the Environmental Indemnity (Intermediate Mezzanine) concerning environmental laws, hazardous substances and asbestos and any indemnification expense incurred by or on behalf of Mezzanine Lender by reason of the failure of Mezzanine Borrower to comply with respect theretoany of the provisions of Article XII;
(i) any loss, damage, cost or expense incurred by or on behalf of Mezzanine 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 5.2.19;
(j) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of the failure of Mezzanine Borrower to deliver to Mezzanine 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 Combined Release Price for such Individual Property, in accordance with the provisions of Section 2.3.4;
(k) all of the Indebtedness and the Obligations (Fourth Mezzanine) 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 , any 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 such 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 Mezzanine Lender, in the event (and arising out of such circumstances) that Mezzanine Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Mezzanine Lender relative to the Collateral, the Account Collateral (Fourth Mezzanine) or the Rate Cap Collateral (Fourth Mezzanine) or any part thereof which is found by a court to have been raised by Mezzanine Borrower in bad faith or to be without basis in fact or law;
(m) reasonable attorney’s fees and expenses actually incurred by Mezzanine Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (l) or clause (n) below; or
(n) after the occurrence and during the continuance of an Event of Default, any Receipts from the Ownership Interests collected by Mezzanine Borrower or any Affiliate of Mezzanine Borrower and any Receipts from the Mezzco IV Ownership Interests collected by Mezzanine Borrower or any Affiliate of Mezzanine Borrower (other than Receipts sent to the Mezzanine Account and not paid directly to Mezzanine Lender) and not paid to Mezzanine Lender or applied to the payment of the Obligations (Fourth Mezzanine).
Appears in 1 contract
Samples: Mezzanine Loan and Security Agreement (Station Casinos Inc)