Common use of Carveouts From Non-Recourse Limitations Clause in Contracts

Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents (Third Mezzanine) to the contrary, there shall at no time be any limitation on Mezzanine Borrower's or Guarantor's liability for the payment, in accordance with the terms of this Agreement, the Mezzanine Note, the Pledge and the other Loan Documents (Third 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; (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 (Third 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 held as collateral for Mortgage Loan or delivered to the Mortgage Lender upon a foreclosure of the Property or upon foreclosure of the Collateral, or action in lieu thereof, except to the extent any such membership deposits, security deposits or advance deposits were applied or refunded in accordance with the terms and 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; 104

Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents (Third First Mezzanine) to the contrary, there shall at no time be any limitation on Mezzanine Borrower's or Guarantor's liability for the payment, in accordance with the terms of this Agreement, the Mezzanine Note, the Pledge and the other Loan Documents (Third First 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; (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 (Third First 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 held as collateral for Mortgage Loan or delivered to the Mortgage Lender upon a foreclosure of the Property or upon foreclosure of the Collateral, or action in lieu thereof, except to the extent any such membership deposits, security deposits or advance deposits were applied or refunded in accordance with the terms and 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; 104;

Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents (Third 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 Security Instrument and the other Loan Documents (Third Mezzanine)Documents, 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 BorrowerBorrower and/or (ii) the failure of Borrower and/or Operating Lessee (as applicable) to have a valid and subsisting certificate of occupancy(s) for all or any portion of the Property if and to the extent such certificate of occupancy(s) is required to comply with all Legal Requirements; (b) Proceeds which 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 (Third 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)provisions of this Agreement; (c) any membership deposits and any security deposits and advance deposits which are not held as collateral for Mortgage Loan or delivered to the Mortgage Lender upon a foreclosure of the Property or upon foreclosure of the Collateral, or action in lieu thereof, except to the extent any such membership deposits, security deposits or advance deposits were applied or refunded in accordance with the terms and conditions of any of the Leases or membership agreement, as applicable, prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof; (d) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of all or any part of the Property, the Account Collateral or the Rate Cap Collateral being encumbered by a Lien (other than this Agreement and the Security Instrument) in violation of the Loan Documents; (e) after the occurrence and during the continuance of an Event of Default, any Rents, issues, profits and/or income collected by Borrower, Operating Lessee or any Affiliate of Borrower or Operating Lessee (other than Rents and credit card receivables sent to the applicable Deposit Account or paid directly to Lender pursuant to any notice of direction delivered to tenants of the Property or credit card companies) and not applied to payment of the Obligations or used to pay normal and verifiable Operating Expenses of the Property or otherwise applied in a manner permitted under the Loan Documents; (f) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of physical damage to the Property from intentional waste committed by Borrower or any Affiliate of Borrower; (g) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document; (h) any loss, damage, cost or expense incurred by or on behalf of Lender by reason of the failure of Borrower to comply with any of the provisions of Article XIV; (i) if Borrower fails to obtain Lender's prior written consent to any Transfer, as required by the Loan Agreement or the Security Instrument; (j) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against Lender, in the event (and arising out of such circumstances) that (x) Borrower should raise any defense, counterclaim and/or allegation in any foreclosure action by Lender relative to the Property, the Account Collateral or the Rate Cap Collateral or any part thereof which is found by a court to have been raised by Borrower in bad faith or to be without basis in fact or law, or (y) an involuntary case is commenced against Borrower under the Bankruptcy Code with the collusion of Borrower or any of its Affiliates or (z) an order for relief is entered with respect to the Borrower under the Bankruptcy Code through the actions of the Borrower or any of its Affiliates at a time when the Borrower is able to pay its debts as they become due unless Borrower and Guarantor shall have received an opinion of independent counsel that the directors of Borrower has a fiduciary duty to seek such an order for relief; (k) any actual loss, damage, cost, or expense incurred by or on behalf of Lender by reason of Borrower, Operating Lessee, or their respective general partners failing to be and have been since the date of its respective formation, a Single Purpose Entity; 104and (l) reasonable attorney's fees and expenses incurred by Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (l).

Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents (Third Fourth Mezzanine) to the contrary, there shall at no time be any limitation on Mezzanine Borrower's or Guarantor's liability for the payment, in accordance with the terms of this Agreement, the Mezzanine Note, the Pledge and the other Loan Documents (Third Fourth 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; (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 (Third Fourth 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 held as collateral for Mortgage Loan or delivered to the Mortgage Lender 104 upon a foreclosure of the Property or upon foreclosure of the Collateral, or action in lieu thereof, except to the extent any such membership deposits, security deposits or advance deposits were applied or refunded in accordance with the terms and 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 (Fourth Mezzanine) or the Rate Cap Collateral (Fourth Mezzanine) being encumbered by a Lien (other than this Agreement and the Pledge) in violation of the Loan Documents (Fourth 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, Affiliate Tenant, Mezzanine Borrower or any Affiliate of Mortgage Borrower, Mezzanine Borrower, or Affiliate Tenant (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 (Fourth 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 (Fourth Mezzanine) concerning environmental laws, hazardous substances and asbestos and any indemnification of Mezzanine Lender with respect thereto; (h) Intentionally Deleted; (i) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender if Mezzanine Borrower fails to obtain Mezzanine Lender's prior written consent to any Transfer, as required by this Agreement or the Pledge; (j) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender by reason of (i) Mortgage Borrower's breach of any term or terms of the Doral Settlement Agreement (provided Mezzanine Lender, may in its sole but reasonable discretion, enter into a separate written agreement with Mortgage Borrower limiting the liability arising with respect to the Doral Settlement Agreement to a specific dollar amount based upon documentation delivered to Lender that indicates the aggregate cost to complete all of the work set forth in the Doral Settlement Agreement (provided, it is further agreed that such amount will also include all potential fines, penalties and future settlement amounts that may arise relating to the Doral Settlement Agreement)), (ii) the failure of Mortgage Borrower to comply with its 105 obligations under Section 16.3 of the Loan Agreement (Mortgage) (subject to a cap of liability in an amount equal to $178,938), (iii) the personal injury matter relating to Xxxx Xxxxxxxxx and the matters identified as items 1, 5, 6, 8 and 12 on attached Schedule I (provided, Mezzanine Lender may agree in writing to reduce any or all of the liability under this clause (iv) based upon its review of any documents delivered to Lender) and/or (v) the failure of Mortgage Borrower to have a valid certificate of occupancy for any Property (or portion thereof) that is required under applicable Legal Requirements; (k) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender relating to the liability, if any, of the Mortgage Borrower owning the Desert Property under indemnities it gave in connection with the land sales to Toll Bros., Inc. and to the La Quinta Redevelopment Agency; (l) any and all liabilities, obligations, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees, causes of action, suits, claims, demands and adjustments of any nature or description whatsoever) which may at any time be imposed upon, incurred by or awarded against 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 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, or (y) an involuntary case is commenced against Mezzanine Borrower under the Bankruptcy Code with the collusion of Mezzanine Borrower or any of its Affiliates or (z) an order for relief is entered with respect to the Mezzanine Borrower under the Bankruptcy Code through the actions of the Mezzanine Borrower or any of its Affiliates at a time when the 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 the General Partner of Mezzanine Borrower has a fiduciary duty to seek such an order for relief; (m) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender solely and as a direct result of unfunded membership deposit refund liabilities under the membership program in which Grand Wailea Refund Members participate under the applicable Membership Agreements in effect at any time up to the date, if applicable, that Mortgage Lender forecloses on or accepts a deed in lieu of foreclosure of the Grand Wailea Property; (n) any loss, damage, cost or expense incurred by or on behalf of Mezzanine Lender as a result of any of the assumptions related to pre-existing entities or their status as single-purposes entities or their compliance with single purpose entity criteria prior to the date of this Agreement, contained in the Non-Consolidation Opinion, in any Additional Non-Consolidation Opinion or in any other non-consolidation opinion delivered to Mezzanine Lender in connection with the Mezzanine Loan, or in any other non-consolidation delivered subsequent to the closing of the Mezzanine Loan, is or shall become untrue in any material respect; 104and (o) reasonable attorney's fees and expenses incurred by Mezzanine Lender in connection with any successful suit filed on account of any of the foregoing clauses (a) through (n). 106

Carveouts From Non-Recourse Limitations. Notwithstanding the foregoing or anything in this Agreement or any of the Loan Documents (Third Second Mezzanine) 103 to the contrary, there shall at no time be any limitation on Mezzanine Borrower's or Guarantor's liability for the payment, in accordance with the terms of this Agreement, the Mezzanine Note, the Pledge and the other Loan Documents (Third Second 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; (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 (Third Second 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 held as collateral for Mortgage Loan or delivered to the Mortgage Lender upon a foreclosure of the Property or upon foreclosure of the Collateral, or action in lieu thereof, except to the extent any such membership deposits, security deposits or advance deposits were applied or refunded in accordance with the terms and 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; 104;