Common use of Recourse Liabilities Clause in Contracts

Recourse Liabilities. (a) Notwithstanding any other provision of this Agreement including, without limitation, Section 6.4 hereof, Developer Member shall be personally liable for, and shall indemnify the Preferred Member and hold the Preferred Member harmless for, all losses, damages, costs and expenses including attorneys’ fees incurred by the Preferred Member as a result of (i) any fraud, Misappropriation, misrepresentation or failure to disclose a material fact, whether prior to or following the Closing Date, (ii) damage to the Land or improvements that comprise the Project as a result of the intentional misconduct or gross negligence of the Developer Member, its Principals or any of their officers, agents or employees, (iii) any waste or abandonment of the Land or improvements which comprise the Project, (iv) any removal of all or any portion of the improvements on the Land in violation of the terms of the Loan Documents or this Agreement or any damage to any portion of the Project as a result of the intentional misconduct or gross negligence of the Developer Member, any Affiliate of the Developer Member or any Affiliate of the Developer Member, (v) the existence, or alleged existence, of any hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants or any other substances or materials which are included under or regulated by Federal, state or local governmental authorities, on, in, under or affecting all or any portion of the Project or any surrounding areas, regardless of whether or not caused by or within the Control of Developer Member, (vi) the occurrence of any recourse event claimed by the Lender under the Loan Documents, (vii) failure to maintain the insurance policies required to be maintained by the Developer Member under this Agreement or under the Loan Documents, (viii) 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 Project, to the full extent of the amount claimed by any such lien claimant, (ix) the failure to make any Additional Capital Contribution required to pay the costs associated with any Cost Overrun and/or (x) the Preferred Return in respect of the period of time commencing on the Effective Date through and including the distribution date identified in Section 9.1(c) not being paid for any reason. Notwithstanding anything in this Agreement to the contrary, the Developer Member shall not be required to indemnify the Preferred Member against losses, damages, costs or expenses caused solely by the gross negligence or willful misconduct of the Preferred Member. (b) Notwithstanding any other provision of this Agreement including, without limitation, Section 6.4 hereof, the Developer Member shall be personally liable for and have full recourse liability under this Agreement for the payment to the Preferred Member of the Required Redemption Amount and any other amounts owing to the Preferred Member pursuant to Section 13.1(a) above, in the event of the Bankruptcy of the Developer Member, any Affiliate of the Developer Member or any Principal, or in the event that the Project becomes an asset in any bankruptcy estate. The obligations and liabilities of the Developer Member described in this Article 13 are herein referred to as the “Recourse Obligations.” The Developer Member’s liability for the Recourse Obligations shall not be limited to the Developer Member’s interest in the Company, and the Preferred Member shall have available to it any and all remedies available at law or in equity to recover from the Developer Member for the Recourse Obligations. (c) An Affiliate of the Developer Member acceptable to the Preferred Member shall guaranty and indemnify the Preferred Member for the Recourse Obligations pursuant to the Guaranty and the Environmental Agreement.

Recourse Liabilities. (a) Notwithstanding Guarantor does hereby unconditionally, absolutely and irrevocably guarantee to Agent (for the benefit of the Lenders), as a primary obligor and not merely as a surety, the payment of any actual loss, damage, cost, expense, liability or claim or other provision of this Agreement including, without limitation, Section 6.4 hereof, Developer Member shall be personally liable for, and shall indemnify the Preferred Member and hold the Preferred Member harmless for, all losses, damages, costs and expenses obligation incurred by Agent and/or any Lender (including reasonable attorneys’ fees and costs of enforcement or collection actually incurred by Agent) arising out of or in connection with the Preferred Member 49303598 following (all such liability and obligation for any or all of the following being referred to herein as a result of “Designated Recourse Liabilities”): (i1) any fraudfraud by Borrower, MisappropriationGuarantor or any Affiliate of Borrower or Guarantor, misrepresentation or failure to disclose a material fact, whether prior to or following the Closing Date, (ii) damage to the Land or improvements that comprise the Project as a result of the intentional misconduct or gross negligence of the Developer Member, its Principals or any of their officersrespective partners, agents shareholders, members, officers or employeesdirectors, in connection with the Loan; (iii2) any waste or abandonment material misrepresentation in any of the Land or improvements which comprise the Project, Loan Documents (ivi) any removal of all by Guarantor or any portion of their respective authorized representatives, or (ii) by Borrower, any Affiliate of Borrower or any of their respective authorized representatives; (3) the improvements on the Land removal, or disposal, by Borrower or any Affiliate of Borrower of any material personal property in which Lenders have a Lien in violation of the terms of the Loan Documents or this Agreement or unless replaced with personal property of substantially equivalent value and utility; (4) any damage to intentional material physical waste of any portion of the Project Property committed by ▇▇▇▇▇▇▇▇, Guarantor or any Affiliate of Borrower or Guarantor, except to the extent caused by the insufficiency of cash flow generated by the Property and made available to Borrower; (5) the failure by Borrower to pay and/or release, as applicable, any (i) claims of persons supplying labor or materials to the Property or (ii) unpaid taxes (including Hotel Taxes), assessments and governmental charges levied upon, assessed or charged against the Property, in each case, in violation of the Loan Agreement, except that there shall be no such liability if (x) the net income generated from the Property that is made available to Borrower is not sufficient to pay such amounts, or (y) Borrower did not have the legal right because of a bankruptcy, receivership or similar proceeding to direct disbursement of funds to pay such claims, taxes, assessments and/or governmental charges; (6) any Transfer in violation of the Loan Documents other than (x) a Transfer that is covered by Section 2(b)(2) below, and/or (y) Immaterial Transfers; (7) failure of Borrower to obtain and maintain insurance coverages required under the Loan Documents, except that there shall be no such liability if (x) (i) net income generated from the Property that is made available to Borrower is not sufficient to pay the premiums therefor, or (ii) Borrower did not have the legal right because of a bankruptcy, receivership or similar proceeding to pay such premiums, and (y) Borrower provides prior written notice to Agent not less than ten (10) Business Days prior to the date that payment of insurance premiums is due; (8) the intentional misappropriation, intentional misapplication or intentional conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, or (B) any condemnation awards received in connection with the Taking of all or a portion of the Property, in the case of (A) or (B), in a manner not permitted by the Loan Documents, except in each case, to the extent that Borrower did not have the legal right because of a bankruptcy, receivership or similar proceeding to direct disbursement of such proceeds or awards; (9) the intentional misappropriation, intentional misapplication or intentional conversion by Borrower of any funds in violation of the Loan Documents (including intentional misappropriation, intentional misapplication or intentional conversion of security deposits and all revenues received by or on behalf of Borrower 49303598 from the operation or ownership of the Property), less that portion of such revenues which is (x) actually used by Borrower to operate the Property in the ordinary course of business and (y) such use is approved in writing by Agent (such approval not to be unreasonably withheld); provided, however, there shall be no liability under this Section 2(a)(9) to the extent that Borrower did not have the legal right because of a bankruptcy, receivership or similar proceeding to direct disbursement of such funds; (10) a breach of any of the covenants set forth in Section 5.21 of the Loan Agreement; (11) the material breach by Borrower or Guarantor of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity; (12) to the extent not covered by Section 2(b)(7) below, ▇▇▇▇▇▇▇▇’s failure to obtain Agent’s prior written consent to any voluntary Indebtedness (other than Permitted Indebtedness) or voluntary Lien (other than Permitted Encumbrances and Immaterial Transfers) encumbering, in each case, the Property or the Collateral, if such Indebtedness or Lien was filed by, or affirmatively approved or acquiesced to by, a Credit Party; (13) if (A) the Hotel Management Agreement (or the right to operate the Hotel Property thereunder) shall expire or be cancelled, surrendered or terminated by Borrower or any Affiliate of Borrower and is not replaced by a Replacement Hotel Management Agreement in accordance with the Loan Agreement, and/or (B) Borrower amends or modifies the Hotel Management Agreement or Replacement Hotel Management Agreement without the prior written consent of Agent (unless Agent’s consent is not required pursuant to the terms of the Loan Agreement); (14) any Advance Deposits collected by or controlled by Borrower with respect to the Hotel which are intentionally misappropriated or misapplied by Borrower upon a foreclosure of the Property or action in lieu thereof, except to the extent that any such Advance Deposits were refunded to the maker of such Advance Deposit in accordance with the terms of the related Hotel Transaction; (15) if Borrower and/or any Affiliate of Borrower holds any of the liquor licenses at the Hotel, a License Revocation Event occurs, or if, in connection with any Transfer of the Property to Lender (or Lender’s designee) in full or partial satisfaction of the Obligations, Borrower or any Affiliate of Borrower fails to take any lawful action reasonably necessary to effect the transfer of any liquor license or other Licenses with respect to the Property from the then-current holder thereof to the transferee of the Property or its designee; (16) any withdrawal liability paid or payable in connection with any pension or union obligation under a Collective Bargaining Agreement or any other collective bargaining or labor agreement entered into by Borrower or Hotel Manager after the Closing Date; and/or (17) any liability under the WARN Act or any other applicable similar state law that arises as a result of the intentional misconduct or gross negligence termination of any of the Developer Memberemployees at the hotel located on the Property (whether by ▇▇▇▇▇▇▇▇, Hotel Manager or any other Person acting as the employer of such employees) without Agent’s prior written consent. 49303598 (b) Guarantor hereby agrees to be liable (as a primary obligation of Guarantor) for the full repayment of all of the Obligations in the event that any of the following occur (the “Recourse Liabilities”): (1) the substantive consolidation of the assets and liabilities of Borrower with any Affiliate of Borrower in a bankruptcy or similar proceeding; (2) (A) the Developer Member or occurrence of any Affiliate of the Developer Member, following Transfers in violation of the Loan Documents: (vi) the existencetransfer of fee title (or execution of a ground lease, or alleged existence, other than the Operating Lease) of any hazardous, toxic or harmful substances, wastes, materials, pollutants or contaminants or any other substances or materials which are included under or regulated by Federal, state or local governmental authorities, on, in, under or affecting all or any portion of the Project Hotel Property and/or Garage Property or the transfer of all or any surrounding areasportion of Operating Lessee’s leasehold interest in the Hotel Property (provided, regardless that the removal of whether obsolete or immaterial personal property shall not caused constitute a Recourse Obligation under this clause (2)(i)); or (ii) any Transfer which results in (x) Borrower no longer being Controlled by one or within the more Control of Developer MemberParties, (viy) CMCT no longer remains as Guarantor, unless an Approved Guarantor has satisfied the occurrence Approved Guarantor Condition, or (z) CMCT or a Qualified Equity Holder no longer continues to be an indirect constituent owner of each Borrower with an aggregate indirect ownership interest in each Borrower of at least fifty percent (50.0%); (3) a bankruptcy petition or assignment for the benefit of creditors is filed against Borrower or a receiver is appointed for the Mortgaged Property (i) by Guarantor or by any general partner, managing member or Affiliate of Guarantor or Borrower (each, a “Restricted Entity”), or (ii) by any Person acting at the direction or request of, or in collusion or by agreement with, ▇▇▇▇▇▇▇▇, Guarantor or any Restricted Entity of any recourse event claimed of them; (4) any voluntary filing by Borrower of a bankruptcy petition with respect to itself, or the Lender making by ▇▇▇▇▇▇▇▇ of a voluntary assignment for the benefit of creditors, or the voluntary appointment of a receiver for the Mortgaged Property in any action initiated, or consented to, by ▇▇▇▇▇▇▇▇; (5) Borrower or any other Restricted Entity files an answer consenting to, or otherwise acquiescing in, or joining in, any involuntary petition filed against Borrower or any other Restricted Entity by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (6) Borrower or any Restricted Party makes an assignment for the benefit of creditors, or admitting in any legal proceeding, its insolvency or inability to pay its debts as they become due (provided, that if Borrower or any such Restricted Party is required by applicable Legal Requirements to admit the same in a legal proceeding and such Restricted Party is in fact insolvent, then such admission, in and of itself, shall not be a Recourse Liability); (7) ▇▇▇▇▇▇▇▇ fails to obtain Agent’s prior written consent to any voluntary Indebtedness for borrowed money (other than Permitted Indebtedness) or voluntary Lien securing borrowed money (other than Permitted Encumbrances and Immaterial Transfers) encumbering, in each case, the Property or the Collateral, if such Indebtedness or Lien was filed by, or affirmatively approved or acquiesced to by, a Credit Party; or (8) the interference by any Credit Party with Agent’s and/or any ▇▇▇▇▇▇’s pursuit of its legal and/or equitable rights or remedies under the Loan Documents, (vii) failure to maintain the insurance policies required to be maintained by the Developer Member under this Agreement or under the Loan Documents, (viii) failure to pay any valid taxes, assessments, mechanic’s liens, materialmen’s liens or other liens 49303598 Documents in a manner which could create liens on any portion a court of the Project, to the full extent of the amount claimed by any such lien claimant, (ix) the failure to make any Additional Capital Contribution required to pay the costs associated with any Cost Overrun and/or (x) the Preferred Return competent jurisdiction determines in respect of the period of time commencing on the Effective Date through and including the distribution date identified a final judgment was in Section 9.1(c) not being paid for any reason. Notwithstanding anything in this Agreement to the contrary, the Developer Member shall not be required to indemnify the Preferred Member against losses, damages, costs or expenses caused solely by the gross negligence or willful misconduct of the Preferred Memberbad faith. (bc) Notwithstanding If Borrower fails to purchase an Interest Rate Protection Agreement as and when required in accordance with Section 2.9.1 of the Loan Agreement, Guarantor hereby agrees to pay to Lender (as a primary obligation of Guarantor) (i) any other provision amount due Lender under Section 2.9.3(d) of this the Loan Agreement, and (ii) all amounts that would have been payable by the counterparty to such Interest Rate Protection Agreement includingpursuant to the terms thereof had such Interest Rate Protection Agreement been fully executed and delivered as required by Section 2.9.1 of the Loan Agreement; provided that the foregoing clause (ii) shall not apply from and after the date, without limitationif any, upon which an Interest Rate Protection Agreement is purchased and delivered by Borrower in accordance with Section 6.4 hereof, 2.9.1 of the Developer Member shall be personally liable for and have full recourse liability Loan Agreement. The liabilities under this Agreement for the payment to the Preferred Member of the Required Redemption Amount and any other amounts owing to the Preferred Member pursuant to Section 13.1(a2(c) above, in the event of the Bankruptcy of the Developer Member, any Affiliate of the Developer Member or any Principal, or in the event that the Project becomes an asset in any bankruptcy estate. The obligations and liabilities of the Developer Member described in this Article 13 are herein referred to as the “Recourse Obligations.” The Developer Member’s liability for the Recourse Obligations shall not be limited to the Developer Member’s interest in the Company, and the Preferred Member shall have available to it any and all remedies available at law or in equity to recover from the Developer Member for the Recourse ObligationsIRPA Liabilities”. (cd) An Affiliate In addition, (x) if all or any portion of the Developer Member acceptable “key money” received from Hotel Manager is required to the Preferred Member shall guaranty and indemnify the Preferred Member for the Recourse Obligations be returned to Hotel Manager pursuant to the Guaranty terms of the Hotel Management Agreement, and such amounts are not returned by Borrower from proceeds of equity contributions from Guarantor and/or an Affiliate thereof, or Lender and/or a purchaser at foreclosure or an assignment in lieu of foreclosure becomes liable to Hotel Manager for the return of such amounts following ▇▇▇▇▇▇’s exercise of remedies, and/or (y) if Hotel Manager fails to contribute or pay the amount of any “key money” required to be contributed to the Hotel Property or paid by Hotel Manager to Borrower in connection with, and when required under, any Hotel Management Agreement, Guarantor hereby agrees to pay to Lender (as a primary obligation of Guarantor) such amount (which amount, in the case of (y), shall be deposited by Lender into the Renovation/PIP Costs Rebalancing Reserve Sub-Account and disbursed in accordance with the Loan Agreement); provided, that, in the case of clause (y), Guarantor’s liability shall be reduced on a dollar for dollar basis by the amount so contributed or paid by Hotel Manager. The liabilities under this Section 2(d) are referred to as the “Payment Liabilities”, and together with the Recourse Liabilities, the Designated Recourse Liabilities and the Environmental AgreementIRPA Liabilities are collectively referred to herein as the “Guaranteed Obligations”).