OF A
MANAGEMENT AGREEMENT, WITHOUT LENDER'S PRIOR WRITTEN CONSENT; (XI) THE
SURRENDER, TERMINATION, AMENDMENT OR MODIFICATION OF A FRANCHISE AGREEMENT,
WITHOUT LENDER'S PRIOR WRITTEN CONSENT; (XII) THE FAILURE OF BORROWER TO SATISFY
ANY REQUIREMENTS SET FORTH ON EXHIBIT A TO THAT CERTAIN POST-CLOSING AGREEMENT
DATED AS OF THE DATE HEREOF BETWEEN BORROWER AND LENDER; AND (XIV) THE FAILURE
OF BORROWER TO PAY THE ENTIRE MORTGAGE RECORDING TAX IMPOSED BY THE NEW YORK
STATE TAX COMMISSION IN CONNECTION WITH THE LOAN. AS USED HEREIN, THE TERM
"LOSSES" INCLUDES ANY AND ALL CLAIMS, SUITS, LIABILITIES, ACTIONS, PROCEEDINGS,
OBLIGATIONS, DEBTS, DAMAGES, LOSSES, COSTS, EXPENSES, DIMINUTIONS IN VALUE,
FINES, PENALTIES, CHARGES, FEES, EXPENSES, JUDGMENTS, AWARDS, AMOUNTS PAID IN
SETTLEMENT, PUNITIVE
2
DAMAGES, FORESEEABLE AND UNFORESEEABLE CONSEQUENTIAL DAMAGES, OF WHATEVER KIND
OR NATURE (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS' FEES AND OTHER
COSTS OF DEFENSE). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN ANY OF THE LOAN
DOCUMENTS, (I) LENDER SHALL NOT BE DEEMED TO HAVE WAIVED ANY RIGHT WHICH LENDER
MAY HAVE UNDER SECTION 506(A), 506(B), 1111(B) OR ANY OTHER PROVISIONS OF THE
U.S. BANKRUPTCY CODE TO FILE A CLAIM FOR THE FULL AMOUNT OF THE DEBT SECURED BY
THE MORTGAGE OR TO REQUIRE THAT ALL COLLATERAL SHALL CONTINUE TO SECURE ALL OF
THE DEBT OWING TO LENDER IN ACCORDANCE WITH THE LOAN DOCUMENTS, AND
(II) BORROWERS (BUT NOT PRINCIPAL) SHALL BE LIABLE FOR THE FULL AMOUNT OF THE
DEBT AND ALL OBLIGATIONS OF BORROWERS TO LENDER UNDER THE LOAN DOCUMENTS IN THE
EVENT THAT (A) THE FIRST FULL MONTHLY PAYMENT OF INTEREST ON ANY NOTE IS NOT
PAID WITHIN FIVE (5) DAYS OF NOTICE THAT SUCH PAYMENT IS LATE; OR (B) ANY
BORROWER FAILS TO PERMIT ON-SITE INSPECTIONS OF THE PROPERTY SUBJECT TO THE
RIGHTS OF TENANTS (OTHER THAN AN OPERATING LESSEE) UNDER LEASES, THE RIGHTS OF
MANAGER UNDER THE APPLICABLE MANAGEMENT AGREEMENT AND ANY APPLICABLE CURE PERIOD
SET FORTH IN THE LOAN DOCUMENTS, FAILS TO PROVIDE FINANCIAL INFORMATION AS
REQUIRED UNDER THE LOAN DOCUMENTS SUBJECT TO ANY APPLICABLE CURE PERIOD (EXCEPT
FOR FINANCIAL INFORMATION REQUIRED TO BE DELIVERED BY THE MANAGER, PURSUANT TO
THE APPLICABLE MANAGEMENT AGREEMENT, THAT HAS NOT BEEN DELIVERED TO BORROWER,
PROVIDED BORROWER HAS REQUESTED SUCH FINANCIAL INFORMATION FROM THE MANAGER), OR
FAILS TO COMPLY WITH SECTION 4.1.31 OF THE LOAN AGREEMENT.
2.
GUARANTY. INDEMNITOR ABSOLUTELY AND UNCONDITIONALLY GUARANTEES TO
LENDER THE PROMPT AND FULL PAYMENT OF THE DEBT (AS DEFINED IN THE LOAN
AGREEMENT) IN THE EVENT OF THE FOLLOWING:
(A) ANY BORROWER FILING A VOLUNTARY
PETITION UNDER THE BANKRUPTCY CODE OR ANY OTHER FEDERAL OR STATE BANKRUPTCY OR
INSOLVENCY LAW, (B) THE FILING BY AN AFFILIATE OF ANY BORROWER OF AN INVOLUNTARY
PETITION AGAINST ANY BORROWER UNDER THE BANKRUPTCY CODE OR ANY OTHER FEDERAL OR
STATE BANKRUPTCY OR INSOLVENCY LAW, OR ANY BORROWER OR ANY AFFILIATE OF ANY
BORROWER SOLICITING OR CAUSING TO BE SOLICITED PETITIONING CREDITORS FOR ANY
INVOLUNTARY PETITION AGAINST BORROWER FROM ANY PERSON (WHICH SOLICITING RESULTS
IN THE FILING OF SUCH INVOLUNTARY PETITION AGAINST