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 (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).
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. 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). | _ | Exhibit B Modifications to Instrument
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 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 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. As of the date hereof, the term "Borrower" when used with respect to the Bridge Loan or the Bridge Loan Documents shall mean, collectively, the Company, ERC, RFI and EFI and the term "Lender" shall mean CapitalSource, regardless of how "Borrower" and "Lender" may previously have been defined in any of the Bridge Loan Documents executed prior to the date hereof.
Borrower and Lender. Borrower acknowledges and agrees that its obligations to Xxxxxx hereunder and under the Loan Documents are and shall be independent of any obligations of Borrower to its members, and the obligations of Xxxxxxxx's members, each to the other. Xxxxxxxx, Xxxxx X. Xxxxxx and Gender Road Joint Venture expressly acknowledge and agree that Xxxxxx has no fiduciary duty or obligation of any kind to them, or any of them, and Lender 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 Operating Partnership, L.P., or its subsidiary, is a member in Borrower. 17.
Borrower and Lender each agree to keep the contents of the Loan Documents and any other information about the other party or its business, assets, liabilities or properties which they receive in connection with the Loan Documents (the "Confidential Information") confidential and not to disclose such information to any other Person except as required by applicable law, rule, regulation, stock exchange rule or legal process; provided, however, that if a party hereto is required so to disclose any Confidential Information it will use its reasonable best efforts to obtain confidential treatment, redaction, an in camera review or other methods to limit to the maximum extent possible the content and scope of the disclosure required and each party shall to the extent practicable permit the other party and its counsel to review any such request and participate in the process of prosecuting such request.
