(II)
WITH RESPECT TO ANY OBLIGATIONS ARISING
UNDER OR RELATED TO ANY LETTER OF CREDIT, THE LIMITATION OF THE MAXIMUM
LIABILITY OF THE GUARANTORS PURSUANT TO CLAUSE (I) ABOVE SHALL BE OF NO FORCE
AND EFFECT.
(C)
NOTWITHSTANDING THE FOREGOING, THE
LIMITATION ON LIABILITY AS SET FORTH IN SUBSECTION (B) ABOVE SHALL BECOME NULL
AND VOID AND SHALL BE OF NO FURTHER FORCE AND EFFECT
4
AND THE OBLIGATIONS IMMEDIATELY SHALL BECOME FULLY RECOURSE TO THE BORROWERS AND
GUARANTORS, JOINTLY AND SEVERALLY, IN THE EVENT OF ANY OF THE FOLLOWING:
(I)
A VOLUNTARY BANKRUPTCY OR INSOLVENCY
PROCEEDING IS COMMENCED BY ANY BORROWER UNDER THE U.S. BANKRUPTCY CODE OR ANY
SIMILAR FEDERAL OR STATE LAW;
(II)
AN INVOLUNTARY BANKRUPTCY OR INSOLVENCY
PROCEEDING IS COMMENCED AGAINST ANY BORROWER OR ANY GUARANTOR IN CONNECTION WITH
WHICH ANY BORROWER OR ANY GUARANTOR (OR ANY AFFILIATE OF ANY OF THE FOREGOING)
HAS OR HAVE COLLUDED IN ANY WAY WITH THE CREDITORS COMMENCING OR FILING SUCH
PROCEEDING;
(III)
FRAUD OR INTENTIONAL MISREPRESENTATION BY
ANY BORROWER, ANY GUARANTOR OR ANY AFFILIATE OF ANY BORROWER OR ANY GUARANTOR IN
CONNECTION WITH THE EXECUTION AND THE DELIVERY OF THIS GUARANTEE, THE CREDIT
AGREEMENT, OR ANY OF THE OTHER CREDIT DOCUMENTS, OR ANY CERTIFICATE, REPORT,
FINANCIAL STATEMENT OR OTHER INSTRUMENT OR DOCUMENT FURNISHED TO THE
ADMINISTRATIVE AGENT OR ANY LENDER AT THE TIME OF THE CLOSING OF THE CREDIT
AGREEMENT OR DURING THE TERM OF THE CREDIT AGREEMENT;
(IV)
ANY MATERIAL BREACH OF THE MATERIAL
SEPARATENESS COVENANTS CONTAINED IN SECTION 5.23 OF THE CREDIT AGREEMENT;
(V)
[RESERVED];
(VI)
PARENT AT ANY TIME FAILS TO MAINTAIN ITS
STATUS AS A REIT; OR
(VII)
ANY BREACH OF THE COVENANTS CONTAINED IN
SECTION 6.4 OF THE CREDIT AGREEMENT OR SECTION 12(P) OF THIS GUARANTEE.
(D)
IN ADDITION TO THE FOREGOING AND
NOTWITHSTANDING THE LIMITATION ON LIABILITY SET FORTH IN SUBSECTION (B),
GUARANTORS SHALL BE JOINTLY AND SEVERALLY LIABLE FOR ANY ACTUAL LOSSES, COSTS,
CLAIMS, EXPENSES OR OTHER LIABILITIES INCURRED BY THE ADMINISTRATIVE AGENT OR
ANY LENDER ARISING OUT OF OR ATTRIBUTABLE TO ANY MATERIAL BREACH OF ANY OTHER
REPRESENTATIONS, WARRANTIES OR COVENANTS CONTAINED IN ANY CREDIT DOCUMENT
INCLUDING BUT NOT LIMITED TO ANY REPRESENTATIONS, WARRANTIES OR COVENANTS
RELATING TO ENVIRONMENTAL MATTERS, OR ANY INDEMNITY FOR COSTS INCURRED IN
CONNECTION WITH THE VIOLATION OF ANY ENVIRONMENTAL LAW, THE CORRECTION OF ANY
ENVIRONMENTAL CONDITION, OR THE REMOVAL OF ANY MATERIALS OF ENVIRONMENTAL
CONCERN, IN EACH CASE IN ANY WAY AFFECTING ANY BORROWER'S OR ANY OF ITS
AFFILIATES' PROPERTIES OR ANY OF THE COLLATERAL.
(E)
NOTHING HEREIN SHALL BE DEEMED TO BE A
WAIVER OF ANY RIGHT WHICH THE ADMINISTRATIVE AGENT OR ANY LENDER MAY HAVE UNDER
SECTION 506(A), 506(B), 1111(B) OR ANY OTHER PROVISION OF THE U.S. BANKRUPTCY
CODE TO FILE A CLAIM FOR THE FULL AMOUNT OF THE INDEBTEDNESS SECURED BY THE
CREDIT AGREEMENT OR TO REQUIRE THAT ALL COLLATERAL SHALL CONTINUE TO SECURE ALL
OF THE INDEBTEDNESS OWING TO THE LENDERS AND THE ADMINISTRATIVE AGENT IN
ACCORDANCE WITH THE CREDIT AGREEMENT OR