not Lender is a party thereto, shall be at Borrowers expense. To the extent that Lender incurs any such expenses, including attorneys fees and fees and charges for court costs, bonds and the like, Borrower shall reimburse Lender for such expenses and the amount due Lender shall bear interest at the rate under the Term Loan from the date so incurred by Lender until repaid to Lender and shall be payable to Lender on demand.
4.8 Disposal and Encumbrance of Property. Except as otherwise expressly provided in the Loan Documents, Borrower shall not suffer, permit or enter into any agreement for any sale, lease, transfer, or in any way encumber or dispose of or grant or suffer any security or other assignment (collateral or otherwise) of or in all or any portion of the Property, except for Permitted Leases (as defined below), Permitted Encumbrances, and any modification or amendment of the same. Any consent given by Lender or any waiver of default under this Section, shall not constitute a consent to, or waiver of any right, remedy or power of Lender under any subsequent default hereunder.
4.8 Notice of Material Adverse Effect. Borrower shall promptly give to Lender notice of the occurrence of any Material Adverse Effect.
4.9 Limitation on Distributions. Provided that Borrower is not in breach of the covenant set forth in Section 4.22 (Debt Service Coverage Ratio) of the Credit Agreement (or Borrower has provided the Resizing Amount in accordance with this Agreement), and provided further that no Event of Default then exists, Borrower may, without the consent of Lender declare or pay any dividend or distributions, including, but not limited to, Preferred Dividends.
4.10 Additional Documents. Except with regard to any subordinate financing, Borrower shall not execute or record any document pertaining to, affecting or running with all or any portion of the Property, including, without limitation, any plat or subdivision map, without the prior written approval of Lender of the form and substance of such documents, which approval shall not be unreasonably withheld. Upon granting such approval, Lender agrees to execute such consents and subordination agreements with respect to such documents as are acceptable to Lender in its reasonable discretion.
4.11 Costs. Borrower shall reimburse Lender for any and all fees, costs and expenses including, without limitation, reasonable attorneys fees, other professionals fees, appraisal fees, title fees, environmental assessment fees (including Phase I and Phase II assessments), expert fees, court costs, litigation and other expenses (collectively, the Costs) incurred or paid by Lender or any of its officers, employees or agents in connection with: (a) the preparation, negotiation, procurement, review, administration or enforcement of this Agreement, the Notes, any other Loan Documents or any instrument, agreement, document, policy, consent, waiver, subordination, release of lien, termination statement, satisfaction of mortgage, financing statement or other lien search, recording or filing related thereto (or any amendment, modification or extension to, or any replacement or substitution for, any of the foregoing), whether or not any particular portion of the transactions contemplated during such negotiations is ultimately consummated, (b) any out-of-pocket fees and expenses related to this Agreement, and (c) the defense, preservation and protection of Lenders rights and remedies thereunder, including without limitation, its security interest in the Property or any other property pledged to secure the Loans, whether incurred in bankruptcy, insolvency, foreclosure or other litigation or proceedings or otherwise. The Costs shall be due and payable upon demand by Lender and such Costs incurred by Lender up to and including the Effective Date shall be included in the closing statement with the Title Company. If thereafter Borrower fails to pay the Costs when upon such demand, Lender is entitled to disburse such sums as an additional advance under the terms of this Agreement. Thereafter, the Costs shall bear interest from the date incurred or disbursed at the highest rate set forth herein. This provision shall survive the termination of this Agreement and/or the repayment of any amounts due or the performance of any Obligation.
4.12 Changes in Property Restrictions. Borrower shall not initiate, join in or consent to any change in any applicable zoning ordinance, general plan or similar law, or to any private restrictive covenant or any similar public or private restriction on the use of the Property, except with the prior written consent of Lender (not to be unreasonably withheld, conditioned or delayed).
4.13 Existence. Borrower shall maintain its existence and/or qualified to do business as a limited liability company or corporation, as applicable, in good standing under the laws of the State of Delaware and each other jurisdiction in which it is required to be so qualified.
4.14 Notice of Certain Matters. Borrower shall give notice to Lender, within fifteen (15) days after Borrower obtains actual knowledge thereof, of each of the following:
(a) any litigation or claim affecting or relating to the Property and involving an amount in excess of $1,000,000.00, whether covered by insurance or not, that could reasonably be expected to have a Material Adverse Effect;
(b) any dispute between Borrower and any governmental agency relating to the Property, the adverse determination of which would reasonably be expected to have a Material Adverse Effect;
(c) the creation or imposition of any mechanics, labor, materialmans or other similar lien or other lien against the Property that is not discharged or bonded over within 15 days from the date of Borrowers actual knowledge thereof;