06-08-2022 Council Packet - Laserfiche WebLink

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73495086v3 53 (v) there was fraud or written material misrepresentation by the Borrower or any officer, director, partner, member or employee of the Borrower in connection with the application for or creation of the Indebtedness or there is fraud in connection with any request for any action or consent by the Governmental Lender, Funding Lender, Controlling Person or the Noteowners; (vi) the Borrower or the General Partner voluntarily files for bankruptcy protection under the Bankruptcy Code; (vii) the Borrower or the General Partner voluntarily becomes subject to any reorganization, receivership, insolvency proceeding, or other similar proceeding pursuant to any other federal or state law affecting debtor and creditor rights; (viii) the Project Facilities or any part of the Project Facilities becomes an asset in a voluntary bankruptcy or becomes subject to any voluntary reorganization, receivership, insolvency proceeding, or other similar voluntary proceeding pursuant to any other federal or state law affecting debtor and creditor rights; (ix) an order of relief is entered against the Borrower or the General Partner pursuant to the Bankruptcy Code or other federal or state law affecting debtor and creditor rights in any involuntary bankruptcy proceeding initiated or joined in by a Related Party; or (x) an involuntary bankruptcy or other involuntary insolvency proceeding is commenced against the Borrower or the General Partner (by a party other than the Funding Lender or the Noteowner) but only if the Borrower or the General Partner, as applicable, has failed to use commercially reasonable efforts to dismiss such proceeding or has consented to such proceeding. “Commercially reasonable efforts” will not require any direct or indirect interest Noteowners in the Borrower or the General Partner to contribute or cause the contribution of additional capital to the Borrower or the General Partner. (d) The Borrower and the Guarantor shall have full recourse and personal liability for actual damages, losses and costs as a result of all of the following: (i) the performance of and compliance with all of Borrower’s obligations under Sections 5.12 and 6.14 of this Agreement (relating to environmental matters) or the Borrower’s failure to comply with the provisions of the Environmental Indemnity; (ii) the costs of any audit under Section 6.8 of this Agreement; (iii) any costs and expenses incurred by the Governmental Lender, the Controlling Person and the Funding Lender in connection with the collection of any amount for which Borrower is personally liable under this Section 10.13, including attorneys’ fees and costs and the costs of conducting any independent audit of Borrower’s books and records to determine the amount for which Borrower has personal liability; and (iv) Borrower’s indemnity obligations pursuant to Section 2.5 and 10.12. (e) Further, nothing contained in this Section shall be deemed to limit, vary, modify or amend any obligation owed under any guaranty, master lease or indemnification agreement, including the Environmental Indemnity and the other guaranty agreements of the Guarantors,