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77060900v2 <br /> <br /> <br /> 53 <br /> <br />(iii) the Borrower or the General Partner fails to comply with any provision of <br />Section 6.11(b) hereof and a court of competent jurisdiction holds or determines that such <br />failure or combination of failures is the basis, in whole or in part, for the substanti ve <br />consolidation of the assets and liabilities of the Borrower or the General Partner with the <br />assets and liabilities of a debtor pursuant to Title 11 of the Bankruptcy Code; <br />(iv) a transfer that is an Event of Default under Section 7.1 hereof occurs (other <br />than a transfer described in Section 10.13(b)(vi) above, for which Borrower will have <br />personal liability for any loss or damage); provided, however, that Borrower will not have <br />any personal liability for a transfer consisting solely of the involuntary removal or <br />involuntary withdrawal of the General Partner; <br />(v) there was fraud or written material misrepresentation by the Borrower or <br />any officer, director, partner, member or employee of the Borrower in connection with the <br />application for or creation of the Indebtedness or there is fraud in connection with any <br />request for any action or consent by the Governmental Lender, Funding Lender, <br />Controlling Person or the Noteowners; <br />(vi) the Borrower or the General Partner voluntarily files for bankruptcy <br />protection under the Bankruptcy Code; <br />(vii) the Borrower or the General Partner voluntarily becomes subject to any <br />reorganization, receivership, insolvency proceeding, or other similar proceeding pursuant <br />to any other federal or state law affecting debtor and creditor rights; <br />(viii) the Project Facilities or any part of the Project Facilities becomes an asset <br />in a voluntary bankruptcy or becomes subject to any voluntary reorganization, receivership, <br />insolvency proceeding, or other similar voluntary proceeding pursuant to any other federal <br />or state law affecting debtor and creditor rights; <br />(ix) an order of relief is entered against the Borrower or the General Partner <br />pursuant to the Bankruptcy Code or other federal or state law affecting debtor and creditor <br />rights in any involuntary bankruptcy proceeding initiated or joined in by a Related Party; <br />or <br />(x) an involuntary bankruptcy or other involuntary insolvency proceeding is <br />commenced against the Borrower or the General Partner (by a party other than the Funding <br />Lender or the Noteowner) but only if the Borrower or the General Partner, as applicable, <br />has failed to use commercially reasonable efforts to dismiss such proceeding or has <br />consented to such proceeding. “Commercially reasonable efforts” will not require any <br />direct or indirect interest Noteowners in the Borrower or the General Partner to contribute <br />or cause the contribution of additional capital to the Borrower or the General Partner. <br />(d) The Borrower and the Guarantor shall have full recourse and personal liability for <br />actual damages, losses and costs as a result of all of the following: <br />(i) the performance of and compliance with all of Borrower’s obligations <br />under Sections 5.12 and 6.14 of this Agreement (relating to environmental matters) or the <br />Borrower’s failure to comply with the provisions of the Environmental Indemnity; <br />(ii) the costs of any audit under Section 6.8 of this Agreement;