Guaranteed Recourse Obligations of Borrower. In addition to the Guarantor’s Future Operating Deficit Guaranty Obligations and the Debt Service Reserve Fund Guaranty Obligations, Guarantor shall also guarantee to Lender the prompt payment of any loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following occurring on or after the date hereof (collectively, the “Guaranteed Recourse Obligations of Borrower”): (a) fraud, material misrepresentation, gross negligence or willful misconduct by Borrower, Lessee, Guarantor or any of their respective partners, officers, principals, members, any other guarantor or any other person authorized to make statements or representations, or act, on behalf of Borrower or Guarantor in connection with the Loan; (b) physical waste committed on the Mortgaged Property; damage to the Mortgaged Property as a result of the intentional misconduct or gross negligence of Borrower, Lessee, or any of their respective principals, officers, general partners or members, or any agent or employee of any such persons; or the removal of any portion of the Mortgaged Property in violation of the terms of the Loan Documents following an Event of Default; (c) subject to any right to contest such matters, as provided in the Security Instrument, and to the extent accrued and/or payable prior to a foreclosure or delivery of a deed-in-lieu, failure to pay any valid taxes, assessments, mechanic’s liens, materialmen’s liens or other liens which could create liens on any portion of the Mortgaged Property which would be superior to the lien or security title of the Security Instrument or the other Loan Documents, to the full extent of the amount claimed by any such lien claimant; (d) all legal costs and expenses (including attorneys’ fees) reasonably incurred by Lender in connection with litigation or other legal proceedings involving the collection or enforcement of the Loan, this Guaranty or preservation of Lender’s rights under the Loan Documents or this Guaranty, including any costs incurred by Lender arising from or relating to the filing of a petition under the U.S. Bankruptcy Code by or against Borrower, Lessee, or Guarantor, other than those customarily incurred by a Lender in realizing upon its lien in an uncontested foreclosure sale after an undisputed default; (e) the breach of any representation, warranty, covenant or indemnification provision in the Lessee’s Environmental Indemnity Agreement of even date herewith given by Lessee to Lender or in the Loan Agreement concerning Hazardous Materials Laws or Hazardous Substances; (f) the misapplication or conversion by Borrower or Lessee of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Mortgaged Property, (B) any awards or other amounts received by Borrower or Lessee in connection with the condemnation of all or a portion of the Mortgaged Property, or (C) any Rents by Borrower or Lessee following an Event of Default; and (g) any security deposits or other refundable deposits collected by Borrower or Lessee with respect to the Mortgaged Property which are not delivered to Lender upon a foreclosure of the Mortgaged Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases (as defined in the Security Instrument) prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof. Notwithstanding anything to the contrary in the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the debt secured by the Security Instrument or to require that all collateral shall continue to secure all of the debt owing to Lender in accordance with the Loan Documents, and (B) Guarantor shall be liable for the full amount of the debt and all obligations of Borrower to Lender under the Loan Documents in the event that: (i) the first full monthly payment of principal and interest under the Note which becomes due after the date of this Guaranty is not paid when due; (ii) Borrower or Lessee fails to provide financial information required to be produced by Borrower or Lessee under any Loan Document within thirty (30) days after the date upon which such financial information is due and Lender has given at least fifteen (15) days prior written notice to Borrower or Lessee of such failure by Borrower or Lessee to provide such information; (iii) Borrower fails to maintain its status as a Single Purpose Entity (it being understood that, in the absence of a violation of any other provision of Section 5.4 of the Loan Agreement, Guarantor shall not have any recourse liability for any requirement in such section which required Borrower to remain solvent after the date of this Guaranty; or (iv) except for Permitted Encumbrances and/or Permitted Transfers, Borrower fails to obtain Lender’s prior written consent to any Transfer (as defined in the Security Instrument).
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Guaranteed Recourse Obligations of Borrower. In addition to the Guarantor’s Future Operating Deficit Guaranty Obligations and the Debt Service Reserve Fund Guaranty Obligations, Guarantor shall also guarantee to Lender the prompt payment of any loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following occurring on or after the date hereof (collectively, the “Guaranteed Recourse Obligations of Borrower”):
(a) fraud, material misrepresentation, gross negligence or willful misconduct by Borrower, Lessee, Guarantor or any of their respective partners, officers, principals, members, any other guarantor or any other person authorized to make statements or representations, or act, on behalf of Borrower or Guarantor in connection with the Loan; ;
(b) physical waste committed on the Mortgaged Property; damage to the Mortgaged Property as a result of the intentional misconduct or gross negligence of Borrower, Lessee, or any of their respective principals, officers, general partners or members, or any agent or employee of any such persons; or the removal of any portion of the Mortgaged Property in violation of the terms of the Loan Documents following an Event of Default;
(c) subject to any right to contest such matters, as provided in the Security Instrument, and to the extent accrued and/or payable prior to a foreclosure or delivery of a deed-in-lieu, failure to pay any valid taxes, assessments, mechanic’s liens, materialmen’s liens or other liens which could create liens on any portion of the Mortgaged Property which would be superior to the lien or security title of the Security Instrument or the other Loan Documents, to the full extent of the amount claimed by any such lien claimant;
(d) all legal costs and expenses (including attorneys’ fees) reasonably incurred by Lender in connection with litigation or other legal proceedings involving the collection or enforcement of the Loan, this Guaranty or preservation of Lender’s rights under the Loan Documents or this Guaranty, including any costs incurred by Lender arising from or relating to the filing of a petition under the U.S. Bankruptcy Code by or against Borrower, Lessee, or Guarantor, other than those customarily incurred by a Lender in realizing upon its lien in an uncontested foreclosure sale after an undisputed default;
(e) the breach of any representation, warranty, covenant or indemnification provision in the Lessee’s Environmental Indemnity Agreement of even date herewith given by Lessee to Lender or in the Loan Agreement concerning Hazardous Materials Laws or Hazardous Substances;
(f) the misapplication or conversion by Borrower or Lessee of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Mortgaged Property, (B) any awards or other amounts received by Borrower or Lessee in connection with the condemnation of all or a portion of the Mortgaged Property, or (C) any Rents by Borrower or Lessee following an Event of Default; and
(g) any security deposits or other refundable deposits collected by Borrower or Lessee with respect to the Mortgaged Property which are not delivered to Lender upon a foreclosure of the Mortgaged Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases (as defined in the Security Instrument) prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof. Notwithstanding anything to the contrary in the Note or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the debt secured by the Security Instrument or to require that all collateral shall continue to secure all of the debt owing to Lender in accordance with the Loan Documents, and (B) Guarantor shall be liable for the full amount of the debt and all obligations of Borrower to Lender under the Loan Documents in the event that: (i) the first full monthly payment of principal and interest under the Note which becomes due after the date of this Guaranty is not paid when due; (ii) Borrower or Lessee fails to provide financial information required to be produced by Borrower or Lessee under any Loan Document within thirty (30) days after the date upon which such financial information is due and Lender has given at least fifteen (15) days prior written notice to Borrower or Lessee of such failure by Borrower or Lessee to provide such information; (iii) Borrower fails to maintain its status as a Single Purpose Entity (it being understood that, in the absence of a violation of any other provision of Section 5.4 of the Loan Agreement, Guarantor shall not have any recourse liability for any requirement in such section which required Borrower to remain solvent after the date of this Guaranty; or (iv) except for Permitted Encumbrances and/or Permitted Transfers, Borrower fails to obtain Lender’s prior written consent to any Transfer (as defined in the Security Instrument).
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