Borrower and Lender. EACH (A) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS INSTRUMENT OR THE RELATIONSHIP BETWEEN THE PARTIES AS BORROWER AND LENDER THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL. ATTACHED EXHIBITS. The following Exhibits are attached to this Instrument: x Exhibit A Description of the Land (required). x Exhibit B Modifications to Instrument
Borrower and Lender acknowledge and agree that upon the filing of a bankruptcy petition by or against Borrower under the Bankruptcy Code, the Account Collateral and the Revenues (whether then already in the Collateral Accounts, or then due or becoming due thereafter) shall be deemed not to be property of Borrower's bankruptcy estate within the meaning of Section 541 of the Bankruptcy Code. If, however, a court of competent jurisdiction determines that, notwithstanding the foregoing characterization of the Account Collateral and the Revenues by Borrower and Lender, the Account Collateral and/or the Revenues do constitute property of Borrower's bankruptcy estate, then Borrower and Lender further acknowledge and agree that all such Revenues, whether due and payable before or after the filing of the petition, are and shall be cash collateral of Lender. Borrower acknowledges that Lender does not consent to Borrower's use of such cash collateral and that, in the event Lender elects (in its sole discretion) to give such consent, such consent shall only be effective if given in writing signed by Lender. Except as provided in the immediately preceding sentence, Borrower shall not have the right to use or apply or require the use or application of such cash collateral (i) unless Borrower shall have received a court order authorizing the use of the same, and (ii) Borrower shall have provided such adequate protection to Lender as shall be required by the bankruptcy court in accordance with the Bankruptcy Code.
Borrower and Lender. EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. BORROWER AND LENDER EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT BORROWER OR LENDER MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Borrower and Lender acknowledge that Borrower shall not be in default hereunder in its obligation to make the Tax and Insurance Deposit on any Payment Date, to the extent funds are available to make such deposit from monies deposited in the Cash Collateral Account during the applicable Collection Period after applying such funds to any item with a higher priority than such application to the Tax and Insurance Escrow Account in accordance with the terms of the Cash Management Agreement. Any transfer of funds from the Cash Collateral Account to the Tax and Insurance Escrow Account shall satisfy Borrower's obligation hereunder to make the corresponding Tax and Insurance Deposit, to the extent of the funds so transferred.
Borrower and Lender acknowledge that Borrower has delivered, or shall deliver, to Lender an original executed copy of that certain Timeshare Advance and Marketing Fee Payment Bond, dated as of the date hereof, in the amount of $6,000,000.00, issued by Westgate, as principal, and Liberty Mutual Insurance Company, as surety, in favor of Borrower and TSP Owner and designated as Bond No. 964013668 (as amended, restated, replaced, supplemented, renewed, extended or otherwise modified from time to time, the “Timeshare Project Payment Bond”). Provided that no Event of Default has occurred and is continuing, upon Lender’s receipt of a written request from Borrower, which request shall describe in reasonable detail the circumstances giving rise to Borrower’s need to have physical possession of the Timeshare Project Payment Bond, Lender shall promptly release the Timeshare Project Payment Bond to Borrower. Absent Lender’s receipt of such a written request from Borrower, Lender (or any servicer, custodian or agent of Lender, on Lender’s behalf) shall be entitled to maintain possession of the Timeshare Project Payment Bond on behalf of Borrower, which Timeshare Project Payment Bond shall constitute additional security for the Loan in accordance with the Collateral Assignment of Timeshare Project Proceeds. Following the release by Lender of the Timeshare Project Payment Bond to Borrower and to the extent that the Timeshare Project Payment Bond remains outstanding, Borrower agrees to return possession of the Timeshare Project Payment Bond to Lender promptly after Borrower’s need for physical possession thereof has concluded. Borrower further agrees to deliver to Lender any further documents that amend, restate, replace, supplement, renew, extend or otherwise modify the Timeshare Project Payment Bond.
Borrower and Lender agree to modify the terms and conditions of Borrower's obligations to Lender and Lender's obligations to Borrower under the Loan Agreement in accordance with the terms and conditions set forth herein. The parties hereto agree that all the terms and conditions of the Loan Agreement shall continue unchanged and remain in full force and effect except as amended herein as follows:
Borrower and Lender. As of the date hereof, the term "Borrower" when used with respect to the Bridge Loan or Loan Documents for the Bridge Loan shall mean the Company, ERC, RFI and EFI collectively, and the term "Lender" shall mean CSFB, regardless of how "Borrower" and "Lender" may previously have been defined in any Loan Documents for the Bridge Loan executed prior to the date hereof.
Borrower and Lender. Xxxxxx and Xxxxxxxx acknowledge and agree that their respective obligations to one another hereunder and under the Loan Documents are in addition to, and shall be independent of, any obligations of Borrower to its partners, and the obligations of Xxxxxxxx's partners, each to the other. Borrower, Four Xxxxxx Tower Corporation and Four Xxxxxx Tower Associates expressly acknowledge and agree that Xxxxxx has no fiduciary duty or fiduciary obligation of any kind to them by reason of this Commitment or the Loan, or any of them, and Xxxxxx is and shall be free to exercise any and all rights and remedies reserved to Lender hereunder and under the Loan Documents, notwithstanding that Brandywine TB I, L.P., an affiliate of Brandywine Operating Partnership, is a partner in Borrower.
Borrower and Lender acknowledge and agree that upon the filing of a bankruptcy petition by or against Borrower under the Bankruptcy Code, the Account Collateral and the Revenues (whether then already in the Collateral Accounts, or then due or becoming due thereafter) shall be deemed not to be property of Borrower’s bankruptcy estate within the meaning of Section 541 of the Bankruptcy Code. If, however, a court of competent jurisdiction determines that, notwithstanding the foregoing characterization of the Account Collateral and the Revenues by Borrower and Lender, the Account Collateral and/or the Revenues do constitute property of Borrower’s bankruptcy estate, then Borrower and Lender 53
Borrower and Lender. EACH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A JURY TRIAL IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE AND EACH OTHER LOAN DOCUMENT. In any action or proceeding arising out of or relating to this Note and each other Loan Document (unless otherwise specified in such other Loan Document), Borrower hereby irrevocably submits to the exclusive jurisdiction of the courts of the State of New York located in New York County and the United States District Court for the Southern District of New York, and agrees that effective service of process may be made on Borrower by mailing same to Borrower’s address set forth below. Lender may serve process in any other manner permitted by applicable law. Borrower hereby irrevocably waives any objection to the laying of venue in the aforesaid courts, and any claim of an inconvenient forum. Nothing in this Note or any other Loan Document shall affect any right that Lender may otherwise have to bring any action or proceeding arising from or relating to this Note or the other Loan Documents against Borrower or its properties in the courts of any jurisdiction. To the extent that Borrower or its property may have or hereafter acquire immunity, on the grounds of sovereignty or otherwise, from any judicial process in connection with this Note or any applicable Loan Document, Borrower hereby irrevocably waives, to the fullest extent permitted by applicable law, any such immunity and agrees not to claim same and waives any right to which it may be entitled on account of place of residence or domicile. Borrower agrees that a final judgment in any such action or proceeding shall be conclusive, and may be enforced in any other jurisdiction or in any other permitted manner. Borrower further agrees that any action or proceeding by Borrower against Lender with respect to any matter arising out of, or in any way relating to, this Note shall be brought only in the State and County of New York.