Common use of Limited Guaranty of Payment Clause in Contracts

Limited Guaranty of Payment. Subject to the limitations set forth below, each Guarantor hereby unconditionally guarantees to the Administrative Agent, for the benefit of the Secured Parties, the prompt payment of: (i) the amount (if any) by which the aggregate Advances Outstanding and accrued but unpaid Interest, and Carrying Costs exceed the Maximum Availability, up to a cumulative amount of 5% of the Maximum Facility Amount as in effect from time to time, upon demand by the Administrative Agent at any time after the occurrence of a Termination Event; and (ii) any and all Indemnified Amounts without limitation as to the aggregate amount of payments incurred by any Indemnified Party as a result of the Borrower, the Servicer, the Originator or any Guarantor engaging in (A) willful misconduct; (B) fraud; (C) theft or misappropriation of funds; (D) criminal acts; (E) intentional interference with the Administrative Agent’s Lien in the Collateral or rights with respect thereto; (F) disposition of any Eligible Loans or other Collateral in violation of the terms of this Agreement; (G) any intentional or grossly negligent and material violation of the special purpose entity requirements set forth in Section 4.1(r) of this Agreement which violation (1) impairs the Borrower’s non-consolidation, (2) results in the commencement of a voluntary bankruptcy of the Borrower and/or the Originator, or (3) involves collusion or submission in an involuntary bankruptcy with respect to the Borrower; (H) any action in furtherance of the consolidation of the Borrower’s assets with the assets of any other Person; or (I) any action in furtherance of the dissolution or liquidation of the Borrower (collectively, the “Guaranteed Liabilities”). This Guaranty is a guaranty of payment and not of collection and is a continuing guaranty. For the avoidance of doubt, in no event shall any Guarantor’s liability under this Agreement, or any of the other Transaction Documents or otherwise, exceed in the aggregate, to any and all parties from the date hereof forward, the Guaranteed Liabilities. Notwithstanding any provision to the contrary contained herein or in any of the other Transaction Documents, to the extent the obligations of each Guarantor shall be adjudicated to be invalid or unenforceable for any reason, then the obligations of such Guarantor hereunder shall be limited to the maximum amount that is permissible under Applicable Law.

Limited Guaranty of Payment. Subject In addition to Guarantor’s obligation under Section 1(a), and notwithstanding the limitations set forth belowprovisions of Section 1(b), each Guarantor hereby unconditionally and irrevocably guarantees to Administrative Agent and Lenders the Administrative Agentpunctual payment when due, for the benefit whether by lapse of the Secured Partiestime, the prompt payment of: by acceleration of maturity, or otherwise, of (i) the amount (if any) by which the aggregate Advances Outstanding and accrued but unpaid Interest, and Carrying Costs exceed the Maximum Availability, up to a cumulative amount of 5% of the Maximum Facility Amount as in effect from time to time, upon demand by the Administrative Agent at any time after the occurrence of a Termination Event; Triggering Event (as hereinafter defined), all principal and interest (ii) including interest accruing after maturity and after the commencement of any and all Indemnified Amounts without limitation as to the aggregate amount of payments incurred bankruptcy or insolvency proceeding by or against any Indemnified Party as a result of the Borrower, the Servicerwhether or not allowed in such proceeding) now or hereafter due and owing, the Originator or any Guarantor engaging in (A) willful misconduct; (B) fraud; (C) theft or misappropriation of funds; (D) criminal acts; (E) intentional interference with the Administrative Agent’s Lien in the Collateral or rights with respect thereto; (F) disposition of any Eligible Loans or other Collateral in violation of which Borrower is obligated to pay, pursuant to the terms of this Agreement; (G) any intentional or grossly negligent and material violation of the special purpose entity requirements set forth in Section 4.1(r) of this Agreement which violation (1) impairs the Borrower’s non-consolidation, (2) results in the commencement of a voluntary bankruptcy of the Borrower and/or the Originator, or (3) involves collusion or submission in an involuntary bankruptcy with respect to the Borrower; (H) any action in furtherance of the consolidation of the Borrower’s assets with the assets of any other Person; or (I) any action in furtherance of the dissolution or liquidation of the Borrower (collectivelyNote, the “Guaranteed Liabilities”). This Guaranty is a guaranty of payment and not of collection and is a continuing guaranty. For Loan Agreement, the avoidance of doubt, in no event shall any Guarantor’s liability under this AgreementSecurity Instruments, or any of the other Transaction Documents Loan Documents, as the same may from time to time be amended, supplemented, restated or otherwiseotherwise modified, exceed and (ii) regardless of whether a Triggering Event shall have occurred, 100% of all amounts owing under the Environmental Agreements by Borrowers if (and only if) the Environmental Insurance Policy (as defined in and substantially and materially in the aggregate, to any and all parties from the date hereof forward, the Guaranteed Liabilities. Notwithstanding any provision form approved by Administrative Agent pursuant to the contrary contained herein Loan Agreement) is not then in place or, if not then in place, does not otherwise cover a Borrower for claims relating to environmental matters when and if demand is made by Administrative Agent or in any Lender under the Environmental Agreement delivered by such Borrower (i.e., Guarantor shall have no liability under this Guaranty for, and the Indebtedness (as hereinafter defined) shall not include, amounts owing under any of the Environmental Agreements so long as the Environmental Insurance Policy is in place or otherwise covers the liability of a Borrower for environmental matters at the time demand is made by Administrative Agent or a Lender to such Borrower under the Environmental Agreement delivered by such Borrower, whether or not the claim relating to any such environmental matter is a covered claim under such Environmental Insurance Policy) (the amounts described in clauses (i) and (ii) above shall be referred to herein, collectively, as the “Indebtedness”). The Indebtedness shall also include all costs and expenses incurred by Administrative Agent in seeking to enforce Administrative Agent’s rights and remedies under this Guaranty, including court costs, costs of alternative dispute resolution and reasonable attorneys’ fees, whether or not suit is filed or other Transaction Documentsproceedings are initiated thereon. This Guaranty covers, subject to the extent other terms and conditions of this Guaranty, the obligations of each Guarantor shall be adjudicated to be invalid or unenforceable for any reason, then Indebtedness presently outstanding and the obligations of such Guarantor hereunder shall be limited Indebtedness arising subsequent to the maximum amount that date hereof, including all amounts advanced by Administrative Agent or Lenders in stages or installments. The guaranty of Guarantor as set forth in this Section 2 is permissible under Applicable Lawa continuing guaranty of payment and not a guaranty of collection.

Limited Guaranty of Payment. Subject to the limitations set forth below, each Guarantor hereby unconditionally guarantees to the Administrative Agent, for the benefit of the Secured Parties, the prompt payment of: (i) the amount (if any) by which the aggregate Advances Outstanding and accrued but unpaid Interest, Unused Fees (accrued prior to the Effective Date) and other Carrying Costs exceed the Maximum Availability, up to a cumulative amount of 5% of the Maximum Facility Amount as in effect from time to time, upon demand by the Administrative Agent at any time after the occurrence of a Termination Event; and (ii) any and all Indemnified Amounts without limitation as to the aggregate amount of payments incurred by any Indemnified Party as a result of the Borrower, the Servicer, the Originator or any Guarantor engaging in (A) willful misconduct; (B) fraud; (C) theft or misappropriation of funds; (D) criminal acts; (E) intentional interference with the Administrative Agent’s Lien in the Collateral or rights with respect thereto; (F) disposition of any Eligible Loans or other Collateral in violation of the terms of this Agreement; (G) any intentional or grossly negligent and material violation of the special purpose entity requirements set forth in Section 4.1(r) of this Agreement which violation (1) impairs the Borrower’s non-consolidation, (2) results in the commencement of a voluntary bankruptcy of the Borrower and/or the Originator, or (3) involves collusion or submission in an involuntary bankruptcy with respect to the Borrower; (H) any action in furtherance of the consolidation of the Borrower’s assets with the assets of any other Person; or (I) any action in furtherance of the dissolution or liquidation of the Borrower (collectively, the “Guaranteed Liabilities”). This Guaranty is a guaranty of payment and not of collection and is a continuing guaranty. For the avoidance of doubt, in no event shall any Guarantor’s liability under this Agreement, or any of the other Transaction Documents or otherwise, exceed in the aggregate, to any and all parties from the date hereof forward, the Guaranteed Liabilities. Notwithstanding any provision to the contrary contained herein or in any of the other Transaction Documents, to the extent the obligations of each Guarantor shall be adjudicated to be invalid or unenforceable for any reason, then the obligations of such Guarantor hereunder shall be limited to the maximum amount that is permissible under Applicable Law.

Limited Guaranty of Payment. Subject (a) In addition to the limitations set forth belowGuaranteed Completion Obligations, each from and after the occurrence of any of the following events, Guarantor hereby unconditionally and irrevocably guarantees to the Administrative Agent, for the benefit of the Secured Parties, the prompt payment of: Lender (i) the amount full and prompt payment of the principal sum of the obligations of Borrower under the Loan Documents (if anythe “Borrower Obligations”) in accordance with the terms of the Loan Documents when due, by which acceleration or otherwise, together with all interest and other charges accrued thereon pursuant to the aggregate Advances Outstanding Loan Documents and (ii) the full and prompt payment of all other Borrower Obligations and all other sums, together with interest accrued but unpaid Interestthereon, and Carrying Costs exceed the Maximum Availabilityperformance of all other Borrower Obligations, up when due pursuant to the terms of the Loan Documents upon the occurrence of any of the following; provided, however, that with respect to the occurrence of the events described in clauses (1) through (6) of this Section 4(a), Guarantor’s liability for payment shall be limited to all damages or loss, cost or expense incurred by Lender, including reasonable attorneys’ and paralegals’ fees, court costs and all other reasonable litigation expenses (including expert witness fees, exhibit preparation, and courier, postage, communication and document copying expenses) in enforcing this Guaranty, arising therefrom: (1) the misapplication or misappropriation by Borrower of any or all money collected, paid or received, or to which Borrower is entitled, relating to the Loan or the Project, including, but not limited to, insurance proceeds, condemnation awards, lease security and other deposits and rent; (2) rents, issues, profits and revenues of all or any portion of the Project received or applicable to a cumulative amount of 5% of the Maximum Facility Amount as in effect from time to time, upon demand by the Administrative Agent at any time period after the occurrence of a Termination Event; any Event of Default or after any event which, with the giving of notice and/or the passage of time, would constitute an Event of Default under the Loan Documents, which are not applied to pay, first, (a) real estate taxes and other charges which, if unpaid, could result in liens superior to that of the Deed of Trust, and (iib) any premiums on insurance policies required under the Loan Documents and, second, the other ordinary and all Indemnified Amounts without limitation as necessary expenses of owning and operating the Land and of performing the Development Work and/or to sums due under the Loan Documents; (3) waste committed on, or damage to the aggregate amount of payments incurred by any Indemnified Party Project as a result of intentional misconduct or gross negligence or the Borrower, the Servicer, the Originator removal of all or any Guarantor engaging in (A) willful misconduct; (B) fraud; (C) theft or misappropriation portion of funds; (D) criminal acts; (E) intentional interference with the Administrative Agent’s Lien in the Collateral or rights with respect thereto; (F) disposition of any Eligible Loans or other Collateral Project in violation of the terms of this Agreement; the Loan Documents; (G4) any fraud, material misrepresentation or the intentional or grossly negligent and failure to disclose a material violation of the special purpose entity requirements set forth in Section 4.1(r) of this Agreement which violation (1) impairs the Borrower’s non-consolidation, (2) results in the commencement of a voluntary bankruptcy of the fact by Borrower and/or the Originator, or (3) involves collusion or submission in an involuntary bankruptcy with respect to the Borrower; (H) any action in furtherance of the consolidation of the Borrower’s assets with the assets of any other Person; or (I) any action in furtherance of the dissolution or liquidation of the Borrower (collectively, the “Guaranteed Liabilities”). This Guaranty is a guaranty of payment and not of collection and is a continuing guaranty. For the avoidance of doubt, in no event shall any Guarantor’s liability under this Agreement, or any of the its principals, officers, general partners, managers or members, any guarantor or any agent, employee or other Transaction Documents person authorized or otherwiseapparently authorized to make statements, exceed in the aggregate, representations or disclosures on behalf of any such person; (5) Borrower fails to obtain Lender’s prior written consent to any and all parties from subordinate financing or other voluntary lien encumbering the date hereof forwardProject; (6) Borrower fails to obtain Lender’s prior written consent to any assignment, the Guaranteed Liabilities. Notwithstanding any provision to the contrary contained herein transfer or in any conveyance of the other Transaction Project or any portion thereof or any interest therein or directly or indirectly in Borrower as required by the Loan Documents, to the extent the obligations of each Guarantor shall be adjudicated to be invalid or unenforceable for any reason, then the obligations of such Guarantor hereunder shall be limited to the maximum amount that is permissible under Applicable Law; and/or (7) a Bankruptcy Trigger Event.