Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following: (i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan; (ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral; (iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance; (iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor; (v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document; (vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable; (vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof; (viii) in the event of: (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; (ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and (x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital. (b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 5 contracts
Sources: Ninth Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; Security Instrument (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of any security interest in Rents and Leases under any assignment of leases contained in the Security Instrument and any other Loan Document; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; Property.
(b) Nothing contained herein shall in any manner or (g) constitute a waiver of way release, affect or impair the right of Lender to enforce the liability recover, and obligation of BorrowerBorrower shall be fully and personally liable and subject to legal action, by money judgment or otherwise, to the extent of for any actual loss, damage, cost, expense, liabilitydamage, claim or other obligation incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurredcourt costs), but excluding consequential, special, punitive and exemplary damages) incurred or suffered by Lender arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 4 contracts
Sources: Loan Agreement (Rodin Global Property Trust, Inc.), Loan Agreement (Rodin Global Property Trust, Inc.), Loan Agreement (Rodin Global Property Trust, Inc.)
Exculpation. (a) Subject Effective as of the Effective Date, to the qualifications belowfullest extent permissible under applicable law and without affecting or limiting either of the Debtor Release or Third-Party Release, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained except as otherwise specifically provided in the NotePlan, this each Debtor, each Reorganized Debtor, each New Property Entity, each Estate, and each Exculpated Party is hereby released and exculpated from any claim, obligation, Cause of Action, or liability for any prepetition or postpetition action taken or omitted to be taken in connection with, or related to formulating, negotiating, soliciting, preparing, disseminating, confirming, administering, or implementing the Plan, or consummating the Plan (including the Restructuring Support Agreements), the ▇▇▇▇▇▇ Agreement, the Pledge Agreement Disclosure Statement, the New Governance Documents, the Restructuring Transactions, and/or the Separation Structure or selling or issuing the New Debt, the New Interests, the New CEC Convertible Notes, the New CEC Common Equity, and/or any other Security to be offered, issued, or distributed in connection with the Plan, the Chapter 11 Cases, or any contract, instrument, release, or other agreement or document created or entered into in connection with the Plan (including, for the avoidance of doubt, providing any legal opinion requested by any Entity regarding any transaction, contract, instrument, document, or other agreement contemplated by the Plan or the other Loan Documents reliance by any action Exculpated Party on the Plan or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance the Confirmation Order in lieu of such legal opinion) or any other appropriate action prepetition or proceeding postpetition act taken or omitted to enable Lender and each Noteholder to enforce and realize upon its interest under be taken in connection with or in contemplation of the Noterestructuring of the Debtors, this Agreementexcept for actual fraud, the Pledge Agreement and the other Loan Documentswillful misconduct, or gross negligence in connection with the CollateralPlan or the Chapter 11 Cases following the Petition Date, or any other collateral given to Lender pursuant each solely to the Loan Documentsextent as determined by a Final Order of a court of competent jurisdiction; provided, however, that, except as specifically provided herein, any judgment that in any all respects such action or proceeding Entities shall be enforceable against Borrower only entitled to reasonably rely upon the advice of counsel with respect to their duties and responsibilities pursuant to the extent Plan. Each of Borrower’s interest the Debtors, the Reorganized Debtors, the New Property Entities, the Estates, and each Exculpated Party has, and upon completion of the Plan shall be deemed to have, participated in good faith and in compliance with the applicable laws with regard to the restructuring of Claims and Interests in the Collateral Chapter 11 Cases and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
(a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan Restructuring Transactions, the negotiation, formulation, or preparation of the Restructuring Documents or related agreements, instruments, or other documents pursuant to the Plan, and the solicitation and distribution of the Plan and, therefore, is not, and on account of such distributions shall not be, liable at any time for the violation of any applicable law, rule, or regulation governing the solicitation of acceptances or rejections of the Plan or such distributions made pursuant to the Plan. Notwithstanding the foregoing, the Exculpation shall not release any obligation or liability of any party under the Plan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement document, instrument, or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender agreement (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty those set forth in Section 4.1.30 of this Agreement; and
(xthe Plan Supplement) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails executed to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of implement the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalPlan.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 4 contracts
Sources: Restructuring Support and Forbearance Agreement (CAESARS ENTERTAINMENT Corp), Restructuring Support, Forbearance, and Settlement Agreement (CAESARS ENTERTAINMENT Corp), Restructuring Support and Forbearance Agreement (CAESARS ENTERTAINMENT Corp)
Exculpation. (a) Subject to the qualifications belowExcept as otherwise provided herein, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained herein or in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure actionan action under the New York UCC, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under this Agreement, the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or and the interest in the Collateral, or Collateral and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Pledge Agreement and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and . Lender, by accepting this Agreement, the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 15.1 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreement or the other Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge Agreement; (ciii) affect the validity or enforceability of any indemnity (including those contained in the Guaranty, Environmental Indemnity, Section 13.6 and Article XIV of this Agreement), guaranty, master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Pledge Agreement and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower impair the enforcement of the assignment of leases provisions contained in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralAgreement; or (gvi) constitute a waiver of impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents Insurance Proceeds and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalAwards.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 4 contracts
Sources: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Exculpation. (a) Subject to the qualifications belowbelow and except as set forth in the Guaranty and Environmental Indemnity, Lender neither Agent nor Lenders shall not enforce the liability and obligation of the Borrower or any holder of a direct or indirect interest in ESBA or any supervisor of either party comprising Borrower or Controlling either party comprising Borrower to perform and observe the obligations Obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrowera Credit Party, except that Lender Agent may bring a foreclosure action, terminate the Ground Lease, Operating Lease and Observatory Lease, bring an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder Agent to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents or any other collateral given to Lender Agent and/or Lenders pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Property, in the Rents, in the Cash Collateral and in any other collateral given to LenderAgent and/or Lenders, and LenderLenders, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents; provided, further, that, subject to the terms and provisions of the Sublease as the same is amended, modified or supplemented after the date hereof with the consent of Agent, nothing herein shall constitute an acknowledgement by any party hereto that Operating Company or Observatory Tenant is liable for all or any portion of the Loans or other Obligations of Borrower. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender Agent or Lenders to name Borrower any Credit Party as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage and termination of the Operating Lease and Observatory Lease; (c) affect the validity or enforceability of any guaranty or any Guaranty indemnification agreement made in connection with the Loan or any of the rights and remedies of Lender Agent or Lenders thereunder; (d) impair the right of Lender Agent or Lenders to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender Agent or Lenders to seek a deficiency judgment against Borrower in order to fully realize on any security given by Borrower in connection with the security granted by the Pledge Agreement Loan or to commence any other appropriate action or proceeding in order for Lender Agent or Lenders to exercise its remedies against all of the Collateralsuch security; or (g) constitute a waiver of the right of Lender Agent or Lenders to enforce the liability and obligation of BorrowerBorrower or Guarantor, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Agent and/or any Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or any material intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Credit Party in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion fraudulent acts or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor willful misconduct of any funds Credit Party, Guarantor or Manager, if applicable (so long as Manager is an Affiliate of Borrower, Senior Mezzanine Borrower, Mortgage Borrower any Credit Party or Operating Company, including, without limitation, Guarantor);
(Aiii) any Revenues, (B) any Net Liquidation Proceeds during a Trigger Period or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item during the continuance of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part misappropriation of the Collateral Rents by Manager, if applicable (so long as Manager is an Affiliate of any Credit Party or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Guarantor or any Affiliate thereof), any Credit Party, Guarantor of or any security deposits or Rents paid more than one (1) month in advanceAffiliate thereof;
(iv) any act the failure of actual intentional physical waste by Borrowerthe Observatory Tenant, Mortgage Borrowerduring the continuance of an Event of Default or during a Trigger Period, Senior Mezzanine Borrower, Operating Company or any Guarantorto pay all Rent under the Observatory Lease into the HSBC Collection Account in accordance with the Loan Documents and Net Observatory Deck Revenue under the Observatory Lease directly into the JP Collection Account in accordance with the Loan Documents;
(v) the misappropriation of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, or (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property by Manager, if applicable (so long as Manager is an Affiliate of any Credit Party or Guarantor or any Affiliate thereof), any Credit Party or Guarantor or any Affiliate thereof;
(vi) any failure by Manager, if applicable (so long as Manager is an Affiliate of any Credit Party or Guarantor), any Credit Party or Guarantor or any Affiliate thereof to use current Rents to pay then current material operating expenses with respect to the Property in the ordinary course of business (except with respect to Taxes, Other Charges and Trade Payables being contested in accordance with Section 4.1.2);
(vii) intentional physical waste of the Property (but excluding any matter that arises by reason of lack of cash flow with respect to the Property, except to the extent that such lack of cash flow arises from the misappropriation of revenue with respect to the Property as described in clauses (iii), (iv), (v) and (vi) above);
(viii) any removal or disposal of any portion of the Property after an Event of Default in any manner prohibited by the Loan Documents;
(ix) any Credit Party’s failure to obtain Agent’s prior consent to any Transfer, as applicable, as required by the Mortgage or Article VIII hereof (except with respect to a mechanic’s, tax, judgment or similar Lien arising from insufficient Property cash flow except to the extent that such lack of cash flow arises from the misappropriation of revenue with respect to the Property as described in clauses (iii), (iv), (v) and (vi) above);
(x) a voluntary Lien remains an encumbrance on all or any portion of the Property, the Operating Lease or the Observatory Lease in violation of the Loan Documents;
(xi) subject to the provisions of Section 8.3(a)(v), the failure by any Credit Party to comply with the material single purpose entity requirements of this Agreement including those set forth in Section 4.2.19 hereof if such failure leads to a consolidation of the assets of any Credit Party with the assets of another Person (other than the other Credit Parties);
(xii) the incurrence of Indebtedness in violation of the Loan Documents;
(xiii) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances Hazardous Substances and asbestos and any indemnification of Lender with respect thereto in either documentasbestos;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(viixiv) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender Agent upon a foreclosure of any of the Properties Property or action transfer in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action transfer in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(xxv) if Borrowerany modifications, Mortgage Borroweramendments, Senior Mezzanine Borrower restatements and/or supplements made to the Ground Lease, Sublease or Operating Company fails to obtain Lender’s prior the Observatory Lease without the consent to of Agent and any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any termination of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, Observatory Lease without the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgagesconsent of Agent. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender (A) neither Agent nor Lenders shall not be deemed to have waived any right which Lender Agent and/or Lenders may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender Lenders in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower, but not to any holder of a direct or indirect interest in ESBA or any party supervising either party comprising Borrower (other than as provided in the Guaranty and Environmental Indemnity) or Controlling either party comprising Borrower, in the event that: (1) any Credit Party files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (2) an Affiliate, officer, trustee, director, or representative which Controls, directly or indirectly, any Credit Party or Guarantor files or any Credit Party or Guarantor joins in the filing of an involuntary petition against any Credit Party under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited petitioning creditors for any involuntary petition against any Credit Party or from any Person; (3) there is the filing of an involuntary petition against any Credit Party under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, in which any Credit Party or Guarantor colludes with, or otherwise assists such Person, or solicits or causes to be solicited petitioning creditors for any involuntary petition against any Credit Party from any Person; (4) any Credit Party files an answer joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (5) any Affiliate, officer, trustee, director, or representative which Controls any Credit Party or Guarantor joins in an application for the appointment of a custodian, receiver, trustee, or examiner for any Credit Party or any portion of the Property; (6) any Credit Party makes a general assignment for the benefit of creditors, or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due unless such admission is true; or (7) in connection with any enforcement action or exercise or assertion of any right or remedy upon the continuance of an Event of Default and acceleration of the Loan by or on behalf of the Agent and Lenders under or in connection with the Guaranty, Mortgage, Subordinations, Negative Pledges or any other Loan Document, any Credit Party, or Manager, if applicable (if the Manager is an Affiliate of any Credit Party or Guarantor) (I) seeks a defense, judicial intervention or injunctive or other equitable relief of any kind, or (II) asserts, or causes a third party to assert, in a pleading filed in connection with a judicial proceeding any defense against Agent and/or the Lenders, or (III) any right in connection with any security for the Loan, in each of (I), (II) or (III) that the Subordinations or the Negative Pledges or the subordination provisions of the Sublease or Observatory Lease are void, voidable or unenforceable.
Appears in 4 contracts
Sources: Loan Agreement, Loan Agreement (Empire State Realty Trust, Inc.), Loan Agreement (Empire State Building Associates L.L.C.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against BorrowerBorrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section shall not, however,
, (a1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or any similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (d4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to obtain the appointment enforce Section 4.12(e) of a receiverthis Agreement; (e) intentionally omitted; (f7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) 8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower Party in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor willful misconduct of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralParty;
(iii) any litigation or other legal proceeding related to the misappropriationDebt filed by any Borrower Party that delays, conversion opposes, impedes, obstructs, hinders, enjoins or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company otherwise interferes with or frustrates the efforts of Lender to exercise any Guarantor of any security deposits or Rents paid more than one (1) month rights and remedies available to Lender as provided herein and in advancethe other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any act Borrower Party and/or the removal or disposal of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantorportion of the Property after an Event of Default;
(v) the breach misapplication, misappropriation or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any representationloss, warrantydamage or destruction to the Property, covenant (B) any Awards or indemnification provision other amounts received in connection with the Environmental Indemnity Agreement concerning environmental lawsCondemnation of all or a portion of the Property, hazardous substances and asbestos and (C) any indemnification Rents following an Event of Lender with respect thereto Default or (D) any Tenant security deposits or Rents collected in either documentadvance;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine any act of arson by any Borrower Party or Operating Company fails to obtain Lender’s prior consent to of which any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableBorrower Party has knowledge;
(vii) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof;
(viii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein;
(ix) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiix) in any tax on the event of:
(A) Borrowermaking and/or recording of the Security Instrument, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Note or any of the Propertiesother Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(xi) the Collateralseizure or forfeiture of the Property, the Senior Mezzanine Collateral or any portion thereof, other than at or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xii) the request failure to make any Condemnation Payment and/or any Balancing Payment, to permit on-site inspections of Lender; the Property and/or to provide the Required Financial Items, in each case, as and when required herein;
(xiii) Intentionally Omitted;
(xiv) the failure to make repairs, renewals or replacements (Eincluding, without limitation, structural and nonstructural, exterior and interior, ordinary and extraordinary, foreseen and unforeseen) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company to the Property or any Guarantor making an assignment for portion thereof (including, without limitation, the benefit Improvements now or at any time hereafter erected on the Property) as and when required pursuant to the terms of creditors the Loan Documents or as and when necessary to maintain the Property in good and safe condition, in a rentable and tenantable state of repair and/or in the condition required pursuant to the terms of the Loan Documents; and/or
(xv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status those arising as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 direct result of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Companygross negligence or willful misconduct), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) Borrower fails to comply with any provisions hereof relating to cash management or fails to appoint a new property manager upon the request of Lender, fails to cooperate with any New Manager or fails to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Assignment of Management Agreement and the Security Instrument; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; (iv) a Bankruptcy Event occurs; or (v) Sections 11.1 or 11.6 hereof are violated or breached in any material respect.
Appears in 4 contracts
Sources: Loan Agreement (Independence Realty Trust, Inc), Loan Agreement (Independence Realty Trust, Inc), Loan Agreement (Independence Realty Trust, Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral Collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and each Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 9.2 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by or on behalf of Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Manager, any Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Manager, any Operating Company or any Guarantor of any funds of any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, Mortgage Borrower any Manager or any Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Insurance Proceeds or Insurance Proceedspaid by reason of any Casualty, (C) any Awards received in connection with a Condemnation, or (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Manager, any Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Manager, any Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender Lender, Servicer or Collateral Agent with respect thereto in either document;
(vi) if any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower or any Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer (whether by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower or any Operating Company) as required by this Agreement, the Mortgage Loan Agreement Agreement, the Senior Mezzanine Loan Agreement, the Pledge Agreement, any pledge agreement constituting a Senior Mezzanine Loan Document or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender Lender, Mortgage Loan Collateral Agent or the Servicer (as defined in the Mortgage Loan Agreement) upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
: (A) any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which such Borrower, such Mortgage Borrower, such Senior Mezzanine Borrower, such Operating Company or any such Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage such Borrower, Senior Mezzanine Borrower, such Operating Company or any such Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against such Borrower, such Mortgage Borrower, Senior Mezzanine Borrower, such Operating Company or any such Guarantor from any Person; (C) any Borrower, any Mortgage Borrower, Senior Mezzanine Borrower, any Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for such Borrower, such Mortgage Borrower, Senior Mezzanine Borrower, such Operating Company or any such Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or Collateral or any portion thereof, other than at the request of Lender; or (E) any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceedingproceeding (unless failure to make such admission would be a violation of law), its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage any Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement, if any Senior Mezzanine Borrower fails to maintain its status as a Special Purpose Entity (as defined in the Senior Mezzanine Loan Agreement) or breaches any material representation or warranty set forth in Section 4.1.30 of the Senior Mezzanine Loan Agreement, or if any Mortgage Borrower fails to maintain its status as a Special Purpose Entity (as defined in the Mortgage Loan Agreement) or breaches any material representation or warranty set forth in Section 4.1.30 of the Mortgage Loan Agreement; and
(x) if any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower or any Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, or Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering the Collateral, any of the Properties, Senior Mezzanine Collateral or Collateral Properties as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the applicable Senior Mezzanine Loan Agreement, any applicable pledge agreement constituting a Senior Mezzanine Loan Document, the Pledge Agreement or the Mortgages, as applicable. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of any Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of any Borrower in such Borrower, or in any other Affiliate of Borrower in any other Affiliate of such Borrower, nor any obligation of any Affiliate of any Borrower in any such Borrower to restore a negative capital account or to contribute or loan capital to any such Borrower or to any other Affiliate of such Borrower shall at any time be deemed to be the property or an asset of any such Borrower (or any other Affiliate of such Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 4 contracts
Sources: Second Mezzanine Loan Agreement (Harrahs Entertainment Inc), Eighth Mezzanine Loan Agreement (Harrahs Entertainment Inc), Ninth Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instruments or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, Borrower or any of its partners or members except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instruments and the other Loan Documents, or in the CollateralProperties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instruments and the other Loan Documents, agrees that it shall not ▇s▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instruments or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementSecurity Instruments; (c) affect the validity or enforceability of any indemnity (including, without limitation, the Environmental Indemnity), guaranty (including, without limitation, the Guaranty), master lease or any Guaranty similar instrument made in connection with the Loan or any of the rights and remedies of Lender thereunderDocuments; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any of the Assignments of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by each of the Pledge Agreement Security Instruments or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperties; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Guarantor or any Guarantor other guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralGuarantor;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Security Instruments concerning environmental lawsEnvironmental Laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(iv) the removal or disposal of any portion of the Properties after an Event of Default;
(v) the misapplication or conversion by Borrower (but only to the extent of such misapplication or conversion) of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to the Properties, (B) any Awards or other amounts received in connection with the condemnation of all or a portion of the Properties, or (C) any Rents following an Event of Default;
(vi) if Borrowerfailure to pay Taxes, Mortgage Borrower, Senior Mezzanine Borrower charges for labor or Operating Company fails to obtain Lender’s prior consent to materials or Other Charges that can create liens on any voluntary intentional Transfer as required by this Agreement, portion of the Mortgage Loan Agreement or the Mortgages, as applicableProperties;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;; and
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing ’s indemnifications of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty Lender set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages9.2 hereof. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Security Instruments or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first Interest Only Payment Amount is not paid when due; (ii) Borrower fails to permit on-site inspections of the Properties, fails to provide financial information, fails to maintain its status as a single purpose entity or fails to appoint a new property manager upon the request of Lender after an Event of Default, each as required by, and in accordance with the terms and provisions of, this Agreement and the Security Instruments; (iii) Borrower fails to obtain Lender’s prior written consent to any subordinate financing or other voluntary lien encumbering any Individual Property; (iv) Borrower fails to obtain Lender’s prior written consent to any assignment, transfer, or conveyance of any Individual Property or any interest therein as required by the Security Instrument or hereunder; or (v) if any Individual Property becomes an asset in a bankruptcy or insolvency proceeding as a result of any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, filed by, or collusively arranged by, Borrower or any Affiliates of Borrower.
Appears in 3 contracts
Sources: Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Security Instrument, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against Borrower, any other Borrower Party or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower, any other Borrower Party or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Security Instrument, the Pledge Agreement and the other Loan Documents, or in the Property (or any portion thereof), the Collateral, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and any other Borrower Party only to the extent of Borrower’s and any other Borrower Party’s interest in the Collateral Property, in the Collateral, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Security Instrument, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower, any other Borrower Party or any of the Exculpated Parties in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Security Instrument, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b2) impair the right of Lender to name Borrower or any other Borrower Party as a party defendant in any action or suit for foreclosure and sale under the Security Instrument or the Pledge Agreement; (c3) affect the validity or enforceability of any indemnity, guaranty or any Guaranty similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Environmental Indemnity and in the Guaranty) made in connection with the Loan or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower personally and without the effect of the exculpatory provisions of this Article 13); (d4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to obtain the appointment enforce Section 4.12(e) of a receiverthis Agreement; (e) intentionally omitted; (f7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower or any other Borrower Party in order to fully realize the security granted by the Security Instrument or the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralCollateral or the Property (or any portion thereof); or (g) 8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional material misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Borrower Party or any Guarantor of their respective Affiliates in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) willful misconduct any Borrower Party or any of their respective Affiliates in connection with the misappropriationLoan or any Individual Property;
(iii) any litigation or other legal proceeding related to the Debt in which any Borrower Party or their respective Affiliates files or raises a defense that intentionally interferes with Lender exercising any rights and remedies available to Lender as provided in under this Agreement and the other Loan Documents only to the extent a court of competent jurisdiction, conversion in a final non-appealable decision, finds the applicable defenses were not raised in good faith by Borrower;
(iv) intentional physical waste to any Individual Property caused by the intentional acts or misapplication in contravention intentional omissions by any Borrower Party or any of their respective Affiliates (provided that the foregoing is not the result of the Loan Documents insufficiency of cash flow from the Properties to prevent such intentional omissions, and if there is any insufficiency of cash flow, such insufficiency is not a result of misappropriation of Rents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Borrower Party and/or the removal or disposal of any portion of the property by any Borrower Party or any Guarantor of their respective Affiliates after an event of default other than in the ordinary course of owning and managing the Properties or otherwise in violation of this Agreement and the other Loan Documents);
(v) misappropriation by any funds Borrower Party or any of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, their respective Affiliates of (A) any Revenuesinsurance proceeds (including BI Proceeds or Casualty Proceeds) with respect to the Properties, (B) any Net Liquidation Proceeds Awards or Insurance Proceedsother amounts received in connection with any Condemnation of all or any portion of any Individual Property, or (C) any Awards received Rents (provided that, in connection with a Condemnation, (D) each case there shall be no liability under this subsection to the extent that the turnover of such funds is prohibited by any Rents applicable law or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentcourt order);
(vi) Borrower’s failure to pay (or cause to be paid) real property taxes, Ground Rent or other charges due in connection with the Properties that results in liens on any portion of any Individual Property in accordance with the terms and provisions of this Agreement and the other Loan Documents (other than if Borrowersuch failure is caused by the acts of a Tenant) to the extent that (i) any such liens are not bonded over or discharged in accordance with this Agreement and the other Loan Documents and (ii) the Properties generated sufficient revenue in the immediately preceding six (6) month period to pay the same and Borrower failed to apply such revenue to such real property taxes or other charges, Mortgage Borrowerunless such charges are the subject of a bona fide dispute in which Borrower is contesting the amount or validity thereof in accordance with the terms of this Agreement and the other Loan Documents (provided, Senior Mezzanine Borrower however, that there shall be no personal liability under this subsection solely for the failure to pay real property taxes or Operating Company fails Ground Rent if (a) sufficient sums had been reserved hereunder for the express purpose of paying the real property taxes, Ground Rent or charges in question and Lender failed to obtain pay same, and (b) Lender’s prior consent access to such sums was not restricted or constrained by any voluntary intentional Transfer as required action taken by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableon behalf of any Borrower Party in any manner);
(vii) Borrower’s failure to pay Insurance Premiums or the amount of any deductible following a Casualty, Condemnation or other insurance claim, to maintain the Policies in full force and effect, in each case, as expressly provided herein (provided, however, that there shall be no personal liability under this subsection for the aforementioned failures to the extent that, in each case, (A) the Properties generated insufficient revenue in the immediately preceding six (6) month period to pay the Insurance Premiums in question or (B)(i) sufficient sums had been reserved hereunder for the express purpose of paying the Insurance Premiums in question and Lender failed to pay same, and (ii) Lender’s access to such sums was not restricted or constrained by any action taken by or on behalf any Borrower Party in any manner);
(viii) any security deposits, advance deposits or any other deposits collected with respect to by any Borrower Party or any of their respective Affiliates in connection with the Properties which are not delivered to Mortgage Lender upon request upon a foreclosure or action in lieu thereof except to the extent such amounts have been previously applied by Borrower in accordance with this Agreement and the other Loan Documents, the existing leases or in accordance with a court order (provided that, in each case there shall be no liability under this subsection to the extent that the failure to turn over such funds is prohibited by any applicable law or court order);
(ix) the seizure or forfeiture of any Individual Property resulting from criminal wrongdoing by any Borrower Party or any of their respective Affiliates;
(x) breach or violation by any Borrower Party or any of their respective Affiliates of any of the Properties material terms of Sections 11.1, 11.2, 11.6, 11.8 and/or 11.9 of the Loan Agreement;
(xi) any liability or action obligation pursuant to any purchase and sale agreement entered into by a Borrower for the sale by Borrower of a Previously-Owned Property or any other liability or obligation otherwise related to a Previously-Owned Property;
(xii) failure to comply with the terms and provisions of Article 15 hereof;
(xiii) any amendment or modification of the Ground Lease in lieu thereofviolation of the terms hereof or any cancellation, except to expiration or termination (for any reason whatsoever) of the extent Ground Lease, or the surrender of the leasehold estate thereunder in violation of the terms hereof;
(xiv) without limiting Section 13.1(b)(B)(ii) below, any such security deposits were applied voluntary debt, lien or transfer of any Individual Property or the Collateral in violation of the Loan Documents (other than liens being contested in good faith in accordance with the terms and conditions provisions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;this Agreement); and/or
(viiixv) in the event of:
(Awithout limiting Section 13.1(b)(B)(i) below, any breach of violation by Borrower, Mortgage BorrowerPledgor, Senior Mezzanine Borrower, Operating Company or Additional Obligor and/or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing SPE Component Entity of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other PersonArticle 5 hereof, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) immaterial breaches which are promptly cured by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event of: (i) any breach or violation by Borrower, Pledgor, Additional Obligor or any SPE Component Entity of Article 5 hereof, as a result of which, a court orders the substantive consolidation of Borrower, Pledgor, Additional Obligor or any SPE Component Entity with one or more constituent owner(s) of Borrower, Pledgor, Additional Obligor and/or SPE Component Entity (any such person or entity, a “Bankrupt Person”) and which court cites such breach or violation as a material factor in ordering the substantive consolidation of the assets and liabilities of Borrower, Pledgor, Additional Obligor and/or SPE Component Entity with the assets and liabilities of the Bankrupt Person; (ii) any violation or breach of Article 6 hereof caused by (1) any voluntary transfer of the Collateral or fee simple title to all or any portion of the Property (other than with Lender’s prior written consent or as expressly permitted by this Agreement or the other Loan Documents) or (2) any sale or pledge of the ownership interests in any Restricted Party in violation of the terms of the Loan Documents, which, in the case of any sale or pledge described in this clause (2) remains uncured for a period of ten (10) days following Borrower’s obtaining knowledge of such violation (or Borrower’s receipt of notice from Lender of such violation); (iii) a Bankruptcy Event with occurs, or (iv) the incurrence of any voluntary debt secured by all or any portion of any Individual Property or other Collateral or any direct or indirect interests in Borrower, except Indebtedness and liens (including, liens being contested in good faith in accordance with the terms and provisions of this Agreement) expressly permitted pursuant to this Agreement.
Appears in 3 contracts
Sources: Loan Agreement (Retail Value Inc.), Loan Agreement (Retail Value Inc.), Loan Agreement (DDR Corp)
Exculpation. Subject to the terms of the next succeeding paragraph and notwithstanding anything to the contrary otherwise contained in this Guaranty, but without in any way releasing, impairing or otherwise affecting this Guaranty or any of the Loan Documents (including without limitation any guaranties or indemnification agreements) or those certain Environmental Indemnification Agreements to which Borrower or any Guarantor is a party, or the validity hereof or thereof, or the lien of the Mortgage or of any Guarantor Second Mortgage, it is agreed that, with respect to each Guarantor, Lender’s source of satisfaction of the Guaranteed Obligations and the other obligations of each Guarantor hereunder is limited to (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation “Premises” of Borrower to perform and observe the obligations contained such Guarantor (as defined in the NoteGuarantor Second Mortgage executed by such Guarantor; such “Premises” is sometimes referred to in this Section 1.8 as the “Guarantor Premises”) and proceeds thereof, this Agreementand (b) rents, income, issues, proceeds and profits arising out of the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except Guarantor Premises of such Guarantor after an Event of Default (as that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documentsterm is hereafter defined); provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding that nothing herein contained shall be enforceable against Borrower only deemed to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
(a) constitute be a waiver, release or impairment of the Guaranteed Obligations or the security therefor intended by the Guarantor Second Mortgages, or be deemed to preclude Lender from foreclosing one or more of the Guarantor Second Mortgages or from enforcing any obligation evidenced of Lender’s rights or secured by remedies in law or in equity thereunder, or in any way or manner affecting Lender’s rights and privileges under any of the Loan Documents; Documents or any separate guaranty or indemnification agreements guarantying the Guaranteed Obligations.
(i) the application of rents, security deposits, or other income, issues, profits, and revenues derived from the Borrower’s Premises during an uncured Event of Default to anything other than (a) normal and necessary operating expenses of Borrower’s Premises or (b) impair the right Indebtedness evidenced by the Note. It is understood that any rents collected more than one month in advance as of Lender the time of the Event of Default shall be considered to name Borrower as a party defendant in have been collected after the Event of Default;
(ii) any action loss, cost or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability damages arising out of or any Guaranty made in connection with fraud or material misrepresentations to Lender by Borrower (or by any of its general partners, officers, shareholders, members, or their agents, if applicable);
(iii) any loss, cost or damages arising out of or in connection with Borrower’s use or misapplication of (a) any proceeds paid to Borrower under any insurance policies by reason of damage, loss or destruction to any portion of Borrower’s Premises, or (b) proceeds or awards paid to Borrower resulting from the Loan condemnation or other taking in lieu of condemnation of any portion of Borrower’s Premises, for purposes other than those set forth in the Mortgage;
(iv) any loss, cost or damages arising out of or in connection with any material physical waste of Borrower’s Premises or any portion thereof and all reasonable costs incurred by Lender in order to protect Borrower’s Premises;
(v) any taxes, assessments and insurance premiums for which Borrower is liable under the Note, the Mortgage or any of the rights other Loan Documents and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred which are paid by Lender (including attorneys’ fees but not the proportionate amount of any such taxes, assessments and insurance premiums which accrue following the date of foreclosure plus any applicable redemption period or acceptance of a deed-in-lieu of foreclosure);
(vi) any loss, costs reasonably incurred) or damages arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrowercovenants, Mortgage Borrowerobligations, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery liabilities under Paragraph 31 of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in and the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableIndemnity;
(vii) any security depositsloss, advance deposits cost or damages to Lender arising out of or in connection with any other deposits collected with respect to any construction lien, mechanic’s lien, materialman’s lien or similar lien against Borrower’s Premises arising out of the Properties which are not delivered to Mortgage Lender upon a foreclosure acts of any omissions of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofBorrower;
(viii) any and all loss, costs or damages arising out of or incurred in order to cause the Improvements (as defined in the Mortgage) to comply with the accessibility provisions of The Americans with Disabilities Act and each of the regulations promulgated thereunder, as the same may be amended from time to time which are required by any governmental authority;
(ix) the total Indebtedness in the event of:
that (Aa) Lender is prevented from acquiring title to Borrower’s Premises after any Event of Default because of failure of Borrower’s title under federal, Mortgage state or local laws, less any recovery received by Lender from any title insurance policy it holds in connection with the Borrower’s Premises, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor or any general partner, beneficiary, trustee or member of their respective Affiliatesthe foregoing, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary voluntarily files a petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or commences a case or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company proceeding under any provision or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any chapter of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueFederal Bankruptcy Code;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrowerany loss, Mortgage Borrowerdamage, Senior Mezzanine cost, expense and liability, including, but not limited to, reasonable attorneys’ fees and costs, resulting from any act of Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrowerits general partners, Permitted Indebtedness and (y) with respect to Operating Companymembers, Permitted Indebtedness (Operating Company)shareholders, officers, directors, beneficiaries, and/or trustees, as applicable) the case may be, to obstruct, delay or voluntary Lien (other than Permitted Encumbrances) encumbering impede Lender from exercising any of its rights or remedies under the PropertiesLoan Documents;
(xi) the total Indebtedness in the event that (a) Borrower makes an unpermitted transfer of an interest in the Borrower or in Borrower’s Premises without the prior written approval of Lender, Senior Mezzanine Collateral or Collateral as required (b) Borrower makes an unpermitted encumbrance on Borrower’s Premises or the holder of an ownership interest in Borrower encumbers such interest, without the prior written approval of Lender;
(xii) all costs and fees, including without limitation reasonable attorneys’ fees and costs, incurred by this AgreementLender in the enforcement of subparagraphs (i) through (xi) above. With the exception of those items of liability specifically set forth in items (i) through (xii) above, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither lien of any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor judgment against any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or single Guarantor in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectlyproceeding instituted on, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital this Guaranty shall not extend to any Borrower property now or to any hereafter owned by such Guarantor other Affiliate than the interest of Borrower shall at any time be deemed to be such Guarantor in the property or an asset Guarantor Premises described in the Guarantor Second Mortgage executed by such Guarantor and the other security of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim Guarantor for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan DocumentsGuaranteed Obligations.
Appears in 3 contracts
Sources: Limited Guaranty (Hartman Short Term Income Properties XX, Inc.), Limited Guaranty (Hartman Short Term Income Properties XX, Inc.), Limited Guaranty (Hartman Short Term Income Properties XX, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, Purchaser agrees that it shall does not ▇▇▇ forhave and will not have any claims or causes of action against any Seller Party (other than Seller), seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
(a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgagestransactions contemplated hereby. Purchaser agrees to look solely to Seller and Seller’s interest in the Property or, as applicable;
if the Closing has occurred, the net proceeds of the sale (viiin each case, subject to the limitations on Seller’s liability set forth in this Agreement) for the satisfaction of any security depositsliability or obligation arising under this Agreement or the transactions contemplated hereby, advance deposits or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to ▇▇▇ or otherwise seek to enforce any personal obligation against any of Seller’s other assets or properties or any other deposits collected Seller Parties (or their assets or properties) with respect to any matters arising out of or in connection with this Agreement or the transactions contemplated hereby. Without limiting the generality of the Properties which are not delivered to Mortgage Lender upon a foreclosure foregoing provisions of this Section 40, Purchaser hereby unconditionally and irrevocably waives any and all claims and causes of action of any of nature whatsoever it may now or hereafter have against the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors Seller Parties (other than LenderSeller, subject to the foregoing), and hereby unconditionally and irrevocably releases and discharges such other Seller Parties from any and all liability whatsoever which may now or admittinghereafter accrue in favor of Purchaser against such other Seller Parties, in writing connection with or in any legal proceeding, its insolvency arising out of this Agreement or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower the transactions contemplated hereby. The provisions of this Section 40 shall survive the Closing or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty the termination of this Agreement until the Survival Date set forth in Section 4.1.30 of this Agreement; and
41 (xSurvival) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalhereof.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 3 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (SouFun Holdings LTD), Purchase and Sale Agreement (SouFun Holdings LTD)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrower or Borrower Principal, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Note, the Mortgage and the other Loan Documents, or and the interest in the CollateralProperty, or the Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note, the Mortgage and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, ▇▇▇ for, seek or demand any deficiency judgment against Borrower or Borrower Principal in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgage or the other Loan Documents; (bii) impair the right of Lender to name Borrower or Borrower Principal as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Section 12.6, with respect to Borrower or any Guaranty Borrower Principal, Section 13.5, with respect to Borrower, and Article 14 of this Agreement, with respect to Borrower), guaranty, master lease or similar instrument made in connection with this Agreement, the Note, the Mortgage and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize impair the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all enforcement of the Collateralassignment of leases provisions contained in the Mortgage; or (gvi) constitute a waiver of impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by the Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary:
(1) Borrower and Borrower Principal shall be personally liable to Lender (including attorneys’ fees on a joint and costs reasonably incurred) arising out of or in connection with the followingseveral basis for Losses due to:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower Principal or any Guarantor other Affiliate of Borrower or Borrower Principal in connection with the execution and the delivery of this Agreement, the Note, the Mortgage, any of the other Loan Documents, or any certificate, report, financial statement or other instrument or document furnished to Lender at the time of the closing of the Loan Documents and/or or during the term of the Loan;
(ii) Borrower's misapplication or misappropriation of Rents received by Borrower after the misappropriation, conversion or misapplication in contravention occurrence and during the continuance of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion Borrower's misapplication or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor misappropriation of any tenant security deposits or Rents paid more than one (1) month collected in advanceadvance and which have not been applied to the operation of the Property;
(iv) the misapplication or the misappropriation of Insurance Proceeds or Awards;
(v) Borrower's failure to pay Taxes, Other Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Lender pursuant to the terms hereof and there exists no impediment to Lender's utilization thereof) beyond any applicable notice and cure periods specified therein;
(vi) any act of actual intentional physical waste or arson by Borrower, Mortgage Borrowerany principal, Senior Mezzanine BorrowerAffiliate, Operating Company member or general partner thereof or by Borrower Principal, any Guarantor;
(v) the breach of any representationprincipal, warrantyAffiliate, covenant member or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;general partner thereof; or
(vii) the portion of any security depositsRent paid by any Tenant more than thirty (30) days in advance that would have been payable by such Tenant from and after the occurrence of an Event of Default; and
(2) Borrower Principal shall be personally liable to Lender for Losses due to the Property, advance deposits or any other deposits collected part thereof, becoming an asset in (A) a voluntary bankruptcy or insolvency proceeding of Borrower or Borrower Principal, or (B) an involuntary bankruptcy or insolvency proceeding of Borrower or Borrower Principal in connection with respect to which Borrower, Borrower Principal, SPE Component Entity or any of the Properties which are not delivered to Mortgage Lender upon a foreclosure Affiliate of any of the Properties foregoing has or action have solicited, procured, or supported in lieu thereofany way with the creditors commencing or filing such proceeding. Additionally, Borrower Principal shall be personally liable to Lender for Losses in the event of a breach by Borrower or SPE Component Entity of any of the covenants set forth in Article 6, except to the extent any that such security deposits were applied breach was inadvertent, immaterial and is promptly cured in accordance with Section 11.1(d).
(c) Notwithstanding the terms foregoing, the agreement of Lender not to pursue recourse liability as set forth in subsection (a) above SHALL BECOME NULL AND VOID and conditions shall be of no further force and effect and the Debt shall become fully recourse
(1) to Borrower and Borrower Principal, jointly and severally, in the event of a breach of any of the Leases prior covenants set forth in Article 7 hereof and (2) to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) Borrower in the event of:
(i) of a breach by Borrower or SPE Component Entity of any of the covenants set forth in Article 6, except the extent that such breach was inadvertent, immaterial and is promptly cured in accordance with Section 11.1(d) hereof or (ii) the Property or any part thereof shall become an asset in (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; proceeding of Borrower or Borrower Principal, or (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person proceeding of Borrower or Borrower Principal in connection with which Borrower, Mortgage BorrowerBorrower Principal, Senior Mezzanine Borrower, Operating Company SPE Component Entity or any Guarantor or any Affiliate of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Propertiesforegoing has or have solicited, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender)procured, or admitting, in writing or supported in any legal way with the creditors commencing or filing such proceeding, its insolvency or inability to pay its debts as they become due;.
(ixd) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower Nothing herein shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset a waiver of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 provision of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness indebtedness secured by the Mortgage or to require that all collateral shall continue to secure all of the Indebtedness indebtedness owing to Lender in accordance with this Agreement, the Note, the Mortgage or the other Loan Documents.
Appears in 3 contracts
Sources: Loan Agreement (Manufactured Home Communities Inc), Loan Agreement (Manufactured Home Communities Inc), Loan Agreement (Manufactured Home Communities Inc)
Exculpation. (a) Subject to To the qualifications belowextent permitted by applicable law and approved by the Bankruptcy Court, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the NoteUSEC, this AgreementUSEC’s affiliates, the Pledge Agreement Consenting Noteholders, B&W, Toshiba and their respective directors, officers, partners, members, managers, representatives, employees and advisors shall have no liability to any holder of a claim or the other Loan Documents by equity interest for any action act or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or omission in connection with, the Note, this Agreementor arising out of, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
(a) constitute a waiver, release or impairment of any obligation evidenced or secured by any negotiation and implementation of the Loan Documents; (b) impair Restructuring, including the right negotiation and the pursuit of Lender approval of the Disclosure Statement, the Plan and the solicitation of votes for, or confirmation of, the Plan, and the consummation of the Plan, except for willful misconduct, gross negligence, criminal misconduct or fraud as determined by a final order of the Bankruptcy Court and, in all respects, shall be entitled to name Borrower as a party defendant in any action or suit for foreclosure rely upon the advice of counsel with respect to their duties and sale responsibilities under the Pledge Plan. Paducah transition planning and RD&D Program to be discussed and reasonably acceptable to the Majority Consenting Noteholders. Reference is hereby made to that certain Plan Support Agreement (as such agreement may be amended, modified or supplemented from time to time, the “Plan Support Agreement; ”) among USEC Inc. and the noteholders party thereto. Capitalized terms not otherwise defined herein shall have the meaning ascribed to such terms in the Plan Support Agreement. As a condition precedent to becoming the beneficial holder or owner of [__________] dollars (c$__________) affect in [___] Notes (the validity or enforceability of or any Guaranty made “New Notes”), the undersigned ______________ (the “Transferee”) hereby agrees to become bound by the terms, conditions and obligations set forth in connection with the Loan or any Plan Support Agreement. This Assumption Agreement shall take effect and shall become an integral part of the rights Plan Support Agreement immediately upon its execution and remedies of Lender thereunder; (d) impair the right of Lender Transferee shall be deemed to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted be bound by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver terms, conditions and obligations of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery Plan Support Agreement as of the Loan Documents and/or the Loan;
(ii) the misappropriationdate thereof. Transferee hereby represents that, conversion or misapplication in contravention after giving effect to its acquisition of the Loan Documents by BorrowerNew Notes, Mortgage BorrowerTransferee, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection together with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective its Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under legally or beneficially owns or holds $[___] in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full principal amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan DocumentsNotes.
Appears in 2 contracts
Sources: Plan Support Agreement (Usec Inc), Plan Support Agreement (Usec Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the CPLV Rents, or any other collateral Collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any assignment of leases contained in the Mortgage; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation actually incurred by Lender (including reasonable, out of pocket attorneys’ fees and costs expenses reasonably incurredincurred but excluding (x) consequential damages and/or lost profits, and (y) punitive, exemplary or other special damages, except to the extent claimed against or recovered from Lender by any third party which are not a result of any fraud, gross negligence or willful misconduct by Lender) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion willful misconduct of Borrower or misapplication in contravention Guarantor;
(iii) voluntary material physical waste of the Loan Documents Property by Borrower, Mortgage Guarantor or any Affiliate thereof (except if the cash flow from the Property is not sufficient to prevent such material physical waste (so long as such insufficiency does not arise from the intentional misappropriation or conversion of revenues by Borrower, Senior Mezzanine Guarantor or any Affiliates thereof));
(iv) the removal or disposal of any portion of the Property by Borrower, Operating Company Guarantor or any Guarantor of any funds its Affiliates after an Event of Default, unless such Personal Property is replaced with property of the same utility and of the same or greater value and such removal or disposal of such Personal Property is in the ordinary course of Borrower, Senior Mezzanine ’s business;
(v) the misappropriation or conversion by Borrower, Mortgage Borrower Guarantor or Operating Company, including, without limitation, any Affiliate thereof of (A) any RevenuesInsurance Proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of the Property, (DC) any CPLV Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (ED) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or CPLV Rents paid more than one (1) month in advance;
(ivvi) failure to pay charges for labor or materials or other charges or judgments incurred by or on behalf of Borrower that can create Liens on any act portion of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
the Property (v) except to the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification extent such failure occurs solely as a result of Lender with applying CPLV Rents to the Debt, or holding CPLV Rents as additional collateral for the Loan, during the continuance of an Event of Default or a Cash Sweep Period, and such charges or judgments relate to or otherwise arose in respect thereto in either document;
(vi) if Borrowerof work, Mortgage Borrower, Senior Mezzanine Borrower matters or Operating Company fails other actions that commenced prior to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement occurrence of such Event of Default or the Mortgages, as applicableCash Sweep Event);
(vii) any security deposits, advance deposits or any other deposits collected by Borrower with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) failure by Borrower to maintain its status as a Single Purpose Entity or comply with any representation, warranty or covenant set forth in the event of:Section 4.1.30;
(Aix) Borrowerif Borrower fails to obtain Lender’s prior written consent to any Indebtedness or voluntary Lien encumbering the Property (other than a Permitted Encumbrance);
(x) any material modification or termination of the CPLV Lease, Mortgage BorrowerCPLV Lease Guaranty or Ground Lease by Borrower without Lender’s consent in violation of the terms hereunder;
(xi) any termination or cancellation of the Management Agreement by Borrower without Lender’s prior written consent in violation of the terms hereunder and Borrower fails to enter into a Replacement Management Agreement in accordance with the terms hereunder; and/or
(xii) if Guarantor, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor Affiliate of any of the foregoing, in connection with any enforcement action or exercise or assertion of any right or remedy by or on behalf of Lender under or in connection with the Guaranty, the Note, the Mortgage or any other Loan Document, raises a defense or seeks judicial intervention or injunctive or other equitable relief of any kind, or asserts in a pleading filed in connection with a judicial proceeding any defense against Lender or any right in connection with any security for the Loan (other than any defense that is raised in good faith by Borrower or Guarantor).
(a) Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Personwith, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company otherwise solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor Borrower from any Person; (Cc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency lawlaw (except as may be required to avoid violating Rule 9011 of the Federal Rules of Bankruptcy Procedure); (Dd) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than Borrower (except at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement (Vici Properties Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against BorrowerBorrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, Collateral (or any portion thereof) or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not sue for, ▇▇▇ for, seek ek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c3) affect the validity or enforceability of any indemnity, guaranty or any similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (d4) impair the right rights of Lender to (A) obtain the appointment of a receiverreceiver and/or (B) enforce its security interest in the Accounts as provided in Articles 8 and 9 hereof; (e5) intentionally omittedimpair the enforcement of the Pledge Agreement; (f6) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralCollateral (or any portion thereof); or (g7) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation reasonable out-of-pocket Loss incurred by Lender (including out-of-pocket attorneys’ fees and costs reasonably incurredincurred but in all events excluding consequential, punitive and special damages (except to the extent Lender is actually liable for such damages)) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower Party in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of any Borrower Party;
(iii) material physical waste to any Individual Property arising from the Loan Documents intentional acts or omissions of any Borrower Party (it being acknowledged that omissions to perform acts for which sufficient cash flow is not available from the Properties shall not be deemed an intentional omission for purposes of this clause (iii));
(iv) the removal or disposal by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Borrower Party or any Guarantor of its respective Affiliates of any funds portion of Borrower, Senior Mezzanine Borrower, Mortgage any Individual Property after an Event of Default unless such portion of any Individual Property so removed or so disposed of is replaced with property of equal utility and value or such removal or disposal was otherwise permitted pursuant to the terms and conditions hereof;
(v) the misapplication or conversion by any Borrower or Operating Company, including, without limitation, Party of (A) any Revenuesinsurance proceeds paid by reason of any loss, damage or destruction to any Individual Property (or any portion thereof), (B) any Net Liquidation Proceeds Awards or Insurance Proceedsother amounts received in connection with the Condemnation of all or a portion of any Individual Property, (C) any Awards received in connection with a CondemnationRents following an Event of Default, (D) any Rents paid more than one month in advance and/or (E) any Net Liquidation Proceeds After Debt Service;
(vi) failure to pay Taxes, charges for labor or security deposits materials or other charges that can create liens on any portion of any Individual Property in accordance with the terms and provisions hereof; provided, however, Borrower shall have no liability under this subsection (vi) if (A) such Taxes, charges for labor or materials or other charges that can create liens are being contested in accordance with the terms and conditions hereof or (B) sufficient cash flow is not available from the Properties to pay such amounts; provided, that, in no instance shall Borrower be released from any item liability pursuant to this clause (vi) to the extent (1) such insufficiency of Revenue, cash flow arises from whatever sourcethe intentional misappropriation or conversion of Rent by any Borrower Party or (2) following Borrower or Mortgage Borrower incurred such charges after the occurrence and during the continuance of an Event of Default, except to the extent such charges were (I) necessary to protect against imminent danger to the health or safety of any Tenant or any Person at or in the immediate vicinity of any Individual Property or to prevent any imminent defect, damage or harm to any Individual Property, (II) contracted for prior to such Event of Default or (EIII) any distribution or other payments made consented to in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication writing by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Individual Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Collateral or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) breach or violation by Borrower, Mezzanine A Borrower, Mortgage BorrowerBorrower and/or any Applicable SPE Component Entity of any representation, Senior Mezzanine Borrower, Operating Company warranty or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person covenant contained in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueArticle 5 hereof;
(ix) if the failure by Borrower to (A) permit (or cause Mortgage Borrower or Mezzanine A Borrower to permit) on-site inspections of any Individual Property, (B) provide any financial information regarding hereunder and/or pursuant to the other Loan Documents and/or (C) appoint (or cause Mortgage Borrower to appoint) a Qualified Manager pursuant to a Qualified Management Agreement upon the request of Lender which failure constitutes an Event of Default;
(x) a breach of Section 11.1 and/or Section 11.2 hereof, which breach continues for three (3) Business Days after notice from Lender;
(xi) any material amendment, material modification or voluntary termination of any Ground Lease by any Borrower, Senior Mezzanine A Borrower or any Mortgage Borrower without Lender’s consent other than as expressly permitted pursuant to the terms hereof;
(xii) the termination or suspension of any Health Care License arising in connection with any grossly negligent or willful material violation of any Health Care Requirement or otherwise by Borrower, Mezzanine A Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation voluntary termination or warranty set forth in Section 4.1.30 rejection of this Agreement; and
(x) if any such Health Care License by Borrower, Mezzanine A Borrower or Mortgage Borrower, Senior in each instance, which termination, suspension or rejection constitutes an Event of Default;
(xiii) any violation of Article 6 hereof not otherwise covered pursuant to clauses (b)(iv) and (b)(v) immediately below, provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender, Mortgage Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof; or
(xiv) the incurrence by Mortgage Borrower or Operating Company fails to obtain Lender’s prior consent to of any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required indebtedness prohibited by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of by Mezzanine A Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with voluntary indebtedness prohibited by the Mezzanine A Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalAgreement.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) a Bankruptcy Event occurs, (ii) the first full monthly payment of principal (if any) and interest under the Note is not paid when due; (iii) any representation, warranty or covenant contained in Article 5 is violated or breached and such breach or violation results in, or is a substantial factor in, a substantive consolidation of Borrower, Mezzanine A Borrower, Mortgage Borrower and/or any Applicable SPE Component Entity with any other Person in a bankruptcy or similar proceedings; (iv) if Borrower, Mortgage Borrower, Mezzanine A Borrower and/or any Applicable SPE Component Entity fails to obtain Lender’s prior written consent to (A) any voluntary indebtedness or (B) voluntary monetary lien encumbering any Individual Property or any Applicable Collateral to the extent such lien required Lender’s consent under this Agreement or the other Loan Documents; or (v) if Borrower, Mezzanine A Borrower, Mortgage Borrower and/or any Applicable SPE Component Entity fails to obtain Lender’s prior written consent to any voluntary transfer of any material portion of any Individual Property or any Applicable Collateral or to any voluntary act that causes a change in the ownership of Borrower, Mezzanine A Borrower, Mortgage Borrower and/or any Applicable SPE Component Entity to the extent such ownership change required Lender’s consent under this Agreement; provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender, Mortgage Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof. Notwithstanding any provision contained herein or in any other Loan Document, no direct or indirect shareholder, partner, member, principal, affiliate, employee, officer, director, agent or representative of Borrower (each, a “Related Party”) (other than (a) Guarantor in accordance with the Guaranty and the Environmental Indemnity and (b) any Manager that is an Affiliate of Borrower in accordance with any Loan Document to which such Manager may be a party) shall have any personal liability for, nor be joined as a party to any action with respect to (i) the payment of any sum of money which is or may be payable hereunder or under any other Loan Documents, including, but not limited to, the repayment of the Loan or (ii) the performance or discharge of any covenants, obligations or undertakings of Guarantor or any Related Party with respect thereto. In addition to the foregoing, anything contained herein or in the other Loan Documents notwithstanding, in no event will the assets of any Related Party (other than Guarantor in accordance with the Guaranty and the Environmental Indemnity) be available to satisfy any obligation of Borrower hereunder.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.), Mezzanine Loan Agreement (Northstar Realty Finance Corp.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, or in the CollateralProperties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and each Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section 9.2 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementMortgages; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any of the Assignments of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by each of the Pledge Agreement Mortgages or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperties; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by or on behalf of Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower, Mortgage Borrowerany Manager, Senior Mezzanine Borrower, any Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by any Borrower, Mortgage Borrowerany Manager, Senior Mezzanine Borrower, any Operating Company or any Guarantor of any funds of any Borrower, Senior Mezzanine Borrower, Mortgage Borrower any Manager or any Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Insurance Proceeds or Insurance Proceedspaid by reason of any Casualty, (C) any Awards received in connection with a Condemnation, or (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by any Borrower, Mortgage Borrowerany Manager, Senior Mezzanine Borrower, any Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by any Borrower, Mortgage Borrowerany Manager, Senior Mezzanine Borrower, any Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgages concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender Lender, Servicer or Collateral Agent with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine any Borrower or any Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
: (A) any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, any Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, any Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which such Borrower, Mortgage Borrower, Senior Mezzanine Borrower, such Operating Company or any such Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or such Borrower, Mortgage Borrower, Senior Mezzanine Borrower, such Operating Company or any such Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against such Borrower, such Operating Company or any such Guarantor from any Person; (C) any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, any Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, any Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for such Borrower, Mortgage Borrower, Senior Mezzanine Borrower, such Operating Company or any such Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Properties or any portion thereof, other than at the request of Lender; or (E) any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, any Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage any Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine any Borrower or any Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, or Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral Properties as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of any Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of any Borrower in such Borrower, or in any other Affiliate of Borrower in any other Affiliate of such Borrower, nor any obligation of any Affiliate of any Borrower in any such Borrower to restore a negative capital account or to contribute or loan capital to any such Borrower or to any other Affiliate of such Borrower shall at any time be deemed to be the property or an asset of any such Borrower (or any other Affiliate of such Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement (Harrahs Entertainment Inc)
Exculpation. (a) Subject to the qualifications below, Lender Agent shall not enforce the liability and obligation of Borrower to perform and observe the obligations Obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender Agent may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its (and the Lenders’) interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in all or any of the CollateralProperties, the Gross Revenues or any other collateral given to Lender Agent (on behalf of Lenders) pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Gross Revenues and in any other collateral given to LenderAgent (on behalf of Lenders), and LenderAgent (on behalf of Lenders), by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇s▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 10.1 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender Agent to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender Agent and Lenders thereunder; (d) impair the right of Lender Agent to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) impair the enforcement of the Environmental Indemnity; (g) constitute a prohibition against Lender Agent to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender Agent to exercise its remedies against all or any of the CollateralProperties; or (gh) constitute a waiver of the right of Lender Agent to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damagedamage (excluding punitive damages except in the case of punitive damages paid by Agent or any Lender to a third party where such damages do not directly arise as a result of the acts of Agent), cost, expense, liability, claim or other obligation actually incurred by Agent or any Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
(i) fraud or fraud, willful misconduct, intentional misrepresentation of a material fact known to Borrower or Guarantor or failure to disclose a material fact known to Borrower or Guarantor by or on behalf of Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrowerany Affiliate of Borrower or Guarantor, Operating Company or including by reason of any Guarantor in connection with claim under the execution Racketeer Influenced and delivery of the Loan Documents and/or the LoanCorrupt Organizations Act (RICO);
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental lawsIndemnity, hazardous substances subject to the terms and asbestos and provisions of the Environmental Indemnity;
(iii) wrongful removal or destruction of any indemnification portion of Lender with respect thereto any Property or damage to any Property caused by willful misconduct or gross negligence of Borrower, Guarantor or their respective Affiliates;
(iv) any physical waste of any of the Properties by Borrower, Guarantor or their respective Affiliates;
(v) the forfeiture by Borrower of any Property, or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower or Guarantor or any of their respective agents or representatives in either documentconnection therewith;
(vi) if Borrowerthe misappropriation or conversion by or on behalf of Borrower of (A) any Insurance Proceeds paid by reason of any loss, Mortgage Borrower, Senior Mezzanine Borrower damage or Operating Company fails to obtain Lender’s prior consent destruction to any voluntary intentional Transfer as required by this AgreementProperty, the Mortgage Loan Agreement or the Mortgages, as applicable;
(viiB) any Awards or other amounts received in connection with the Condemnation of all or a portion of any Property, or (C) any Gross Revenues (including Rents, Insurance Proceeds, security deposits, advance deposits or any other deposits collected and Lease Termination Payments) or (D) any other funds due under the Loan Documents, including, in connection with respect to any of the Properties which are not delivered foregoing, by reason of failure to Mortgage Lender upon comply with Section 6.1 hereof or breach of the Clearing Account Agreement or the Cash Management Agreement;
(vii) failure to pay charges for labor or materials or other charges (other than Taxes) that can create Liens on any portion of any Property, other than (i) charges incurred by or on behalf of Agent or a receiver put in place by Agent, subject to Permitted Encumbrances or (ii) charges that relate to a period from and after a foreclosure of any the Loan or a conveyance in lieu of foreclosure of the Properties Loan, unless such charges were incurred by Borrower, Guarantor or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions an Affiliate of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure Borrower or action in lieu thereofGuarantor;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company failure to pay Taxes or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Persontransfer taxes, other than Lender, under the Bankruptcy Code those Taxes or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting transfer taxes that relate to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any period from and after a foreclosure of the PropertiesLoan or a conveyance in lieu of foreclosure of the Loan; unless (x) Rents received during the tax period in question are insufficient to pay all of Borrower’s current and/or past due liabilities (including such Taxes) with respect to the Properties or (y) funds to pay such Taxes were, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrowertime in question, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for available in the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability Tax Account and Agent failed to pay its debts as they become due(or make such Tax Funds available to pay) such Taxes;
(ix) if failure to obtain and maintain the fully paid for Policies in accordance with Section 5.1.1 hereof, other than the failure to obtain or maintain Policies that relate to a period from and after a foreclosure of the Loan or a conveyance in lieu of foreclosure of the Loan; unless (x) Rents received during the period in question are insufficient to pay all of Borrower’s current and/or past due liabilities (including such Policies) with respect to the Properties or (y) funds to pay such Insurance Premiums were, Senior Mezzanine Borrower at the time in question, available in the Insurance Account and Agent failed to pay (or Mortgage Borrower fails make such Insurance Funds available to maintain its status as a Special Purpose Entity or breaches any material representation or warranty pay) such Insurance Premiums;
(x) Borrower’s indemnification of Agent set forth in Section 4.1.30 9.2 hereof;
(xi) any (A) actual or alleged violation or breach of any applicable Rent Regulation Laws (including any actual or alleged overcharges in, or rollback to, rent payable by any current or former Tenant) and/or (B) any breach of the covenants set forth in Section 4.34 hereof;
(xii) a breach of the covenants set forth in Section 4.4 hereof or a breach by any New Mezzanine Borrower of the “special purpose entity” covenants contained in the applicable New Mezzanine Loan Documents (other than those breaches covered by clause (i) of the Springing Recourse Events below, and breaches of the covenants set forth in clauses (f) and (i) in the definition of “Special Purpose Bankruptcy Remote Entity” attached hereto as Schedule V);
(xiii) any failure of Borrower and/or Clipper Manager to comply in all respects with Section 4.14.4 hereof, including any failure of the Rose Termination Date to occur by the ninety fifth (95th) day after the Closing Date and, in consideration of Agent’s agreement to waive the requirement to cause Borrower to obtain from Rose Manager a new assignment and subordination of the Management Agreement with Rose Manager in reliance on the termination of Rose Manager, any costs or expenses incurred by Agent to terminate Rose Manager following an Event of Default under this Agreement; andand/or
(xxiv) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower any cost or Operating Company fails to obtain Lender’s prior consent to expense incurred by Agent or any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or Lender in connection with the Loan Documents. Neither the negative capital account enforcement of any Affiliate of Borrower in Borrower, its rights and remedies hereunder or in under any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalLoan Document.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against BorrowerBorrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not ▇s▇▇ for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section shall not, however,
, (a1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or any similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (d4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to obtain the appointment enforce Section 4.12(e) of a receiverthis Agreement; (e) intentionally omitted; (f7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) 8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower Party in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor willful misconduct of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralParty;
(iii) any litigation or other legal proceeding related to the misappropriationDebt filed by any Borrower Party that delays, conversion opposes, impedes, obstructs, hinders, enjoins or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company otherwise interferes with or frustrates the efforts of Lender to exercise any Guarantor of any security deposits or Rents paid more than one (1) month rights and remedies available to Lender as provided herein and in advancethe other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any act Borrower Party and/or the removal or disposal of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantorportion of the Property after an Event of Default;
(v) the breach misapplication, misappropriation or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any representationloss, warrantydamage or destruction to the Property, covenant (B) any Awards or indemnification provision other amounts received in connection with the Environmental Indemnity Agreement concerning environmental lawsCondemnation of all or a portion of the Property, hazardous substances and asbestos and (C) any indemnification Rents following an Event of Lender with respect thereto Default or (D) any Tenant security deposits or Rents collected in either documentadvance;
(vi) if failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof (other than, in each case, due solely to the insufficiency of cash flow generated by the Property and made available to Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable);
(vii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein (other than, in each case, due solely to the insufficiency of cash flow generated by the Property and made available to Borrower);
(viii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiiix) in the event of:[intentionally omitted];
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bx) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company seizure or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any forfeiture of the PropertiesProperty, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower’s interest therein, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or resulting from criminal wrongdoing by any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueBorrower Party;
(ixxi) if Borrowerthe failure to make any Condemnation Payment or to permit on-site inspections of the Property, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status in each case, as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; andand when required herein;
(xxii) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails [intentionally omitted];
(xiii) the failure to obtain Lender’s prior consent comply with any provisions hereof relating to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness cash management as required by and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company)in accordance with, as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of , the Propertiesterms and provisions of, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Assignment of Management Agreement and the Security Instrument;
(xiv) [intentionally omitted];
(xv) the failure of Borrower to appoint a new property manager upon the request of Lender or failure of Borrower to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement, the Mortgage Loan Assignment of Management Agreement, if any, and the Pledge Agreement Security Instrument; and/or
(xvi) the failure of Borrower to establish the Restricted Account or the Mortgages. Notwithstanding anything to pay, or make deposits, to the contrary Restricted Account, in each case as are required under Article 9 of this Agreement, neither any present or future Affiliate of Borrower (other than Guarantorprovided, to the extent provided under the Guaranty) nor any present or future shareholderhowever, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any connection therewith Borrower shall have not be required to perform any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in action beyond Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital’s reasonable control.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of principal and interest under the Note is not paid when due; (ii) [intentionally omitted]; (iii) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached; provided, however: with respect to any breach or violation of Article 5, the Debt shall not be fully recourse to Borrower if: (A) such breach or violation was immaterial and non- recurring, (B) Borrower corrects (or causes to be corrected) such breach or violation within ten (10) Business Days following written notice from Lender, and (C) if requested by Lender upon its reasonable determination that such breach or violation might be considered by a court as a factor in the court’s finding for a consolidation of the assets of Borrower with the assets of another Person, Borrower delivers to Lender within seven (7) days of notice from Lender opinions of counsel, which counsel and opinions shall be satisfactory in form and substance to Lender and the Rating Agencies, to the effect that such breach or violation shall not negate/impair the opinions contained in the Non-Consolidation Opinion (or alternatively, deliver to Lender a new Non-Consolidation Opinion from counsel, satisfactory to Lender and the Rating Agencies, opining that the effect of such failure would not result in such consolidation); or (iv) a Bankruptcy Event occurs.
Appears in 2 contracts
Sources: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Exculpation. (a) Subject to In exercising its duties and powers hereunder, the qualifications belowSecured Party shall exercise the same care that it would exercise in dealing with loans for its own account, Lender but neither Secured Party nor any of its directors, officers, employees or attorneys shall not enforce be responsible for the liability and obligation truth or accuracy of Borrower to perform and observe any representations or warranties given or made herein or for the obligations contained in the Notevalidity, effectiveness, sufficiency or enforceability of this Loan Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate Loan Documents, and Secured Party or any of its directors, officers, employees or attorneys shall not be liable to any of the Holders for any action taken or proceeding omitted to enable Lender and each Noteholder to enforce and realize upon its interest be taken by it or any of them under the NoteLoan Documents, except in the case of its or their willful misconduct or gross negligence. Each of the Holders represents and warrants to Secured Party that it has made its own independent judgment with respect to entering into this Agreement, the Pledge Loan Agreement and the other Loan DocumentsDocuments and undertaking its obligations hereunder and thereunder. Each Holder also acknowledges that it will, or in independently and without reliance upon the Collateral, Secured Party or any other collateral given Holder and based on such documents and information as it shall deem appropriate at the time, continue to Lender pursuant to make its own credit decisions in taking or not taking action under this Loan Agreement and the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only . The powers conferred by this Loan Agreement on Secured Party hereunder are solely to protect the extent of Borrower’s Holders’ interest in the Collateral and shall not impose any duty upon Secured Party to exercise any such powers. Except for the safe custody of any Collateral in its possession and the accounting for monies actually received by it hereunder, Secured Party shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other collateral given rights pertaining to Lenderthe Collateral. Neither Secured Party nor any of its directors, and Lenderofficers, employees (excluding any independent contractors employed by accepting Secured Party) or attorneys shall have any responsibility (1) to the Note, this Agreement, Company on account of the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek failure or demand any deficiency judgment against Borrower delay in any such action performance or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
(a) constitute a waiver, release or impairment breach of any obligation evidenced or secured by Holder of any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Defaultobligations hereunder, or (E2) to any distribution or other payments made in connection with any part Holder on account of the Collateral failure of or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion delay in performance or misapplication breach by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement other Holder or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure Company of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalobligations hereunder.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Loan and Security Agreement (Starinvest Group, Inc.), Loan and Security Agreement (Starinvest Group, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrowers (or any of Borrowers’ members, managers partners shareholders, officers, directors or Affiliates, whether direct or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Agreements or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against either Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Agreements and the other Loan Documents, or in any or all of the Collateral, Collateral or any other collateral given to Lender pursuant to the Pledge Agreements and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrowers or the Borrower Parties only to the extent of Borrower’s Borrowers’ or the Borrower Parties’ interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Agreements, and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against either Borrower or the Borrower Parties in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Agreements, or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower Borrowers as a party defendant defendants in any action or suit for foreclosure and sale under the Pledge AgreementAgreements; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower Borrowers in order to fully realize the security granted by the Pledge Agreement Agreements or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperties; or (ge) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrowers, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, either of the Borrowers or either Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrowers or any Guarantor in connection with the execution and delivery Loan, including by reason of the Loan Documents and/or the Loanany claim under RICO;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of either of the Loan Documents by BorrowerMortgage Borrowers, Mortgage Borrowereither of the Borrowers, Senior Mezzanine Borrowerany Guarantor, Operating Company Principal or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralRestricted Party;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and or asbestos and any indemnification of Lender with respect thereto in any Loan Document;
(iv) wrongful removal or destruction by either documentof the Mortgage Borrowers, either of the Borrowers or any Affiliate of either of the Mortgage Borrowers or Borrowers of any portion of the Properties after the occurrence of an Event of Default or any intentional physical waste of the Properties or any portion thereof by either Borrower, either Mortgage Borrower or any Affiliate of any of them, provided, however, that such physical waste shall exclude wear and tear to the Properties or any portion thereof that occurs in the ordinary course of business of the Properties;
(v) any Legal Requirement (including RICO) mandating the forfeiture by either Borrower or either Mortgage Borrower of any Property or the Collateral, or any portion thereof, because of the conduct or purported conduct of criminal activity by any Borrower, any Mortgage Borrower, or any Restricted Party in connection therewith;
(vi) if Borrowerany misrepresentation, Mortgage Borrower, Senior Mezzanine miscertification or breach of warranty by either Borrower or Operating Company fails to obtain Lender’s prior consent any Guarantor with respect to any voluntary intentional Transfer as required by representation, warranty or certification contained in this Agreement, the Mortgage Loan Agreement or any other Loan Document or in any document executed in connection therewith, pursuant to any of the MortgagesLoan Documents or otherwise to induce Lender to make the Loan, as applicableor any advance thereof, or to release monies from any account held by Lender (including any reserve or escrow) or to take other action with respect to the Collateral;
(vii) the misappropriation or conversion by or on behalf of either Borrower, either Mortgage Borrower, or any of their respective Affiliates of (A) any Insurance Proceeds, (B) any Condemnation Proceeds, (C) any Rents and/or Vacant Space Rent following an Event of Default, (D) any Rents and/or Vacant Space Rent paid more than one (1) month in advance, (E) Net Liquidation Proceeds After Debt Service or (F) any distribution or other payments made in connection with all or any part of the Collateral; provided such amounts are not applied to the payment of the Loan or the Operating Expenses of either Property;
(viii) failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Properties that are superior to the Lien of the Mortgage, unless such charges are being contested in accordance herewith;
(ix) any security deposits, advance deposits or any other deposits collected by either Borrower, either Mortgage Borrower, or any Affiliate thereof with respect to either Property or any of the Properties part thereof which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or any part thereof or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiix) any breach of any representation, warranty or covenant contained in Section 3 of the event of:Pledge Agreements;
(xi) if either Borrower or Mortgage Borrower fails to permit on-site inspections of the Properties or any part thereof, fails to provide financial information specifically required by this Agreement or fails to appoint a new Manager upon the request of Lender, each as required by, and in accordance with, the terms and provisions of this Agreement or the other Loan Documents;
(A) Borrowerif the Operating Partnership shall default under either of the Master Leases beyond any applicable notice and/or cure period contained therein, or (B) if either Master Lease shall have been amended or modified (except as specified in Section 3.1.21 hereof) without Lender’s prior written consent, or (C) if either Master Lease shall have been terminated, cancelled or surrendered without Lender’s prior written consent in violation of Section 5.2.12 or Section 5.2.13 hereof (except as specified in Section 3.1.21 hereof), or (D) if the Operating Partnership is the subject of a Bankruptcy Action, other than an involuntary Bankruptcy Action which is dismissed within ninety (90) days; or
(xiii) (A) if there shall exist an event of default by Tower Mortgage BorrowerBorrower under the Parking Easement beyond any applicable notice and/or cure period contained therein, Senior Mezzanine Borroweror (B) if the Parking Easement shall have been amended or modified in violation of Section 5.2.11 hereof) without Lender’s prior written consent, Operating Company or any Guarantor (C) if the Parking Easement shall have been terminated, cancelled or surrendered (other than by the terms of the Parking Easement) without Lender’s prior written consent in violation of Section 5.2.11 hereof.
(a) either Borrower or either Mortgage Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, either Borrower or either Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower, either Borrower or either Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees Borrower colludes with or otherwise assists such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company either Borrower or any Guarantor either Mortgage Borrower from any Person; (Cc) Borrower, either Borrower or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Dd) Borrower, either Borrower or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for either Borrower, either Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any portion of the Properties, . or the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (Ee) Borrower, either Borrower or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower making an assignment for the benefit of creditors (other than Lender)creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
; (ix2) if Borrower, Senior Mezzanine the first Monthly Interest Payment is not paid when due; (3) if either Borrower or either Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth as required by and in Section 4.1.30 accordance with the terms of this AgreementAgreement and there is a substantive consolidation of either Borrower or either Mortgage Borrower with any other Person; and
(x4) if Borrower, Mortgage Borrower, Senior Mezzanine either Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Properties or the Collateral or Collateral any part thereof as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of ; or (5) if either Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower fails to restore a negative capital account or to contribute or loan capital obtain Lender’s prior consent to any Borrower Transfer as required by this Agreement or to any the other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, Note or this Agreement, the Pledge Agreement or the other Loan Documents Security Instrument by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrower or any general or limited partner or member of Borrower (hereafter collectively referred to as the "Exculpated Parties"), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this AgreementSecurity Instrument, the Pledge Agreement Other Security Documents, and the other Loan Documents, or interest in the CollateralProperty, or the Rents and any other collateral given to Lender pursuant to created by this Security Instrument and the Loan Other Security Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower the Exculpated Parties only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender. ▇▇▇▇▇▇, by accepting the Note, Note and this Agreement, the Pledge Agreement and the other Loan DocumentsSecurity Instrument, agrees that it shall not ▇▇▇ sue for, seek or demand any deficiency judgment against Borrower the Exculpated Parties in any such action or proceeding underproceeding, under or by reason of, of or in connection with, with the Note, the Other Security Documents or this Agreement, the Pledge Agreement or the other Loan DocumentsSecurity Instrument. The provisions of this Section paragraph shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsNote, the Other Security Documents or this Security Instrument; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge Agreementthis Security Instrument; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan Note, this Security Instrument, or any of the rights and remedies of Lender thereunderOther Security Documents; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases and Rents executed in connection herewith; (fvi) constitute a prohibition against impair the right of Lender to seek a deficiency judgment against Borrower in order bring suit with respect to fully realize the security granted fraud or intentional misrepresentation by the Pledge Agreement Exculpated Parties or to commence any other appropriate action person or proceeding entity in order for connection with the Note, this Security Instrument or the Other Security Documents; (vii) impair the right of Lender to exercise its remedies against all obtain the Rents received, and not applied to the operating expenses of the CollateralProperty, by any of the Exculpated Parties after the occurrence of an Event of Default; (viii) impair the right of Lender to bring suit with respect to the Exculpated Parties' misappropriation of tenant security deposits or Rents collected in advance; (gix) constitute a waiver impair the right of Lender to obtain insurance proceeds or condemnation awards due to Lender under this Security Instrument; (x) impair the right of Lender to enforce the liability provisions of sub-paragraphs 36(g) through 36 (k), inclusive and obligation paragraphs 34 and 35 of Borrower, by money judgment this Security Instrument against the Borrower (excluding any general or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim limited partner or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, member thereof); or (Exi) any distribution or other payments made in connection with impair the right of Lender to recover any part of the Collateral or Senior Mezzanine Collateral;
Debt from the Borrower (iii) excluding the misappropriationgeneral and limited partners and members of Borrower), conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) following the breach of any representation, warranty, covenant contained in paragraph 9 or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital55 hereof.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Deed of Trust, Security Agreement, Fixture Filing and Assignment of Leases and Rents (Investors First Staged Equity L P), Deed of Trust, Security Agreement, Fixture Filing and Assignment of Leases and Rents (Investors First Staged Equity L P)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations Obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, or against any SPC Party, any Mezzanine Borrower, any Guarantor, any Affiliates of the foregoing or any of their respective direct or indirect principals, directors, officers, employees, beneficiaries, shareholders, partners, members, trustees or agents (each, exclusive of the Borrower, an “Other Exculpated Party”), except that (1) any Other Exculpated Party that is party to any Loan Document or any other separate written guaranty, indemnity or other agreement given by such Other Exculpated Party in connection with the Loan (including, without limitation, the Assignment of Management Agreement and the Qualified Preferred Equity Recognition Agreement or any other Loan Document to which such Other Exculpated Party is a party) shall remain fully liable therefor and the foregoing provisions shall not operate to limit or impair the liabilities and obligations of such Other Exculpated Party thereunder, and (2) Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperties, the Gross Revenue, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Gross Revenue and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower any of the Exculpated Parties in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 10.1 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) impair the enforcement of the Environmental Indemnity; (g) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all the Properties; (i) waive or impair the liability of any Other Exculpated Party under any Loan Document or any other separate written guaranty, indemnity or other agreement to which such Other Exculpated Party is a party (including, without limitation, the CollateralAssignment of Management Agreement and the Qualified Preferred Equity Recognition Agreement or any other Loan Document to which such Other Exculpated Party is a party); or (gi) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, out-of-pocket cost or expense, liability, claim or other obligation incurred by Lender (including reasonable outside attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
(i) fraud or intentional misrepresentation committed by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Guarantor or any Affiliate of Borrower or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) intentional failure to disclose a material fact known to Borrower, any Guarantor, or any Affiliate of Borrower or any Guarantor in connection with the misappropriation, conversion or misapplication in contravention origination of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received that if disclosed would be reasonably expected to have had a material adverse effect on the Lender’s determination to provide the Loan in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made the amount and on the terms set forth in connection with any part of the Collateral or Senior Mezzanine CollateralLoan Documents;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance[reserved];
(iv) wrongful removal of personal property from the Properties during an Event of Default by Borrower or on behalf of Borrower by any act Guarantor or any Affiliate of actual Borrower or any Guarantor, unless replaced with personal property of substantially the same or greater utility and of the same or greater value;
(v) any intentional physical waste Waste at any Individual Property committed by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or on behalf of Borrower by any Guarantor or any Affiliate of Borrower or any Guarantor;
(vvi) the misappropriation by Borrower or on behalf of Borrower by any Guarantor or any Affiliate of Borrower or any Guarantor of (A) any Insurance Proceeds paid by reason of any Casualty to any Individual Property, (B) any Awards in connection with the Condemnation of any Individual Property and (C) any Gross Revenues after (or that results in) an Event of Default, in each case, in violation of the Loan Documents;
(vii) failure to obtain and maintain the fully paid for Policies in accordance with Section 5.1.1 to the extent that adequate funds were available to Borrower from the income of the Properties for the payment of the premiums thereof;
(viii) any breach of any representationprovision of Section 4.4 or Schedule V of this Agreement (other than with respect to clause (d) of Schedule V (with respect to trade payables only), warrantyclause (f) of Schedule V, covenant or indemnification provision clause (j) of Schedule V, clause (o) of Schedule V (with respect to trade payables only), clause (v) of Schedule V and clause (w) of Schedule V) that does not result in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances substantive consolidation of the assets and asbestos and liabilities of Borrower with any indemnification other Person (other than another Individual Borrower or the Liquor Subsidiary) as a result of Lender with respect thereto in either documentsuch breach;
(viix) any and all Divested Property Liabilities; and/or
(x) the modification of any Ground Lease if Borrower, such modification is prohibited under this Agreement or under any Mortgage Borrower, Senior Mezzanine and such modification has a material adverse effect on the related Individual Property or the leasehold interest therein (including the value or operation thereof) or Lender’s ability to exercise its rights and remedies under the Loan Documents.
(i) Borrower or Operating Company fails to obtain Lender’s prior consent to any financing for borrowed money secured by any Individual Property, or any voluntary intentional Transfer conveyance of a mortgage, deed of trust, security deed, security agreement or similar grant by Borrower of a voluntary Lien upon any Individual Property, or any voluntary granting of a security interest in, voluntary pledge of or other voluntary Lien upon any direct or indirect equity interest in any Individual Borrower, any SPC Party or any Mezzanine Borrower, in each case, as required by this Agreementsecurity for any obligations or liabilities that is not permitted under the Loan Documents (excluding, for the avoidance of doubt, the Mortgage security interests, pledges or Liens granted under the Loan Agreement Documents or Mezzanine Loan Documents securing the Mortgages, as applicable;
Loan or any Mezzanine Loan); (viiii) Borrower fails to obtain Lender’s prior consent to (a) any security depositsvoluntary transfer of any Individual Property that is not permitted under the Loan Documents or (b) any voluntary transfer of a direct or indirect interest in Borrower that results in a change of control of Borrower that is not permitted under the Loan Documents (specifically excluding from this clause (ii), advance deposits (x) any transfer of the direct ownership interests in any Individual Borrower, any SPC Party, or any other deposits collected with respect Mezzanine Borrower to any Mezzanine Lender or its designee as result of any foreclosure upon such ownership interests (or transfer-in-lieu of foreclosure of the Properties which ownership interests that are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereofcollateral for the applicable Mezzanine Loan), except to the extent any such security deposits were applied consummated in accordance with the terms applicable Mezzanine Loan Documents and conditions (y) any Qualified Preferred Equity Vehicle Change of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action Control consummated in lieu thereof;
accordance with Section 7.2(k) hereof); (viii) in the event of:
(Aiii) Borrower, Mortgage Borrowerany SPC Party, Senior and/or any Mezzanine Borrower, Operating Company or any Guarantor filing files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, subject to a maximum aggregate liability equal to the BK Cap; (Biv) the filing of an involuntary petition against Borrower, Mortgage Borrowerany SPC Party, Senior and/or any Mezzanine Borrower, Operating Company or any Guarantor Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower, Mortgage Borrowerany SPC Party, Senior and/or any Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees Borrower colludes with or otherwise assists such other Person, or and/or Borrower, Mortgage Borrowerany SPC Party, Senior and/or any Mezzanine Borrower, Operating Company Borrower solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from SPC Party and/or any Mezzanine Borrower by any Person, subject to a maximum aggregate liability equal to the BK Cap; (Cv) Borrower, Mortgage Borrower, Senior any SPC Party and/or any Mezzanine Borrower, Operating Company or any Guarantor filing Borrower files an answer consenting to or otherwise acquiescing in to, or joining in in, any involuntary petition filed against it by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, subject to a maximum aggregate liability equal to the BK Cap; (Dvi) BorrowerBorrower or any Mezzanine Borrower or any Affiliate, Mortgage Borrowerofficer, Senior director or representative which controls Borrower or such Mezzanine Borrower, Operating Company as the case may be, consents to, or any Guarantor consenting to or acquiescing in or joining in joins in, an application for the appointment of a custodian, receiver, trustee, trustee or examiner for BorrowerBorrower and/or any portion of any Individual Property, Mortgage Borrower, Senior or such Mezzanine Borrower, Operating Company or any Guarantor or any of as the Propertiescase may be, subject to a maximum aggregate liability equal to the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of LenderBK Cap; or (Evii) Borrower, Mortgage Borrower, Senior any SPC Party and/or any Mezzanine Borrower, Operating Company or any Guarantor making Borrower makes an assignment for the benefit of creditors (other than Lender)or admits, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
, subject to a maximum aggregate liability equal to the BK Cap; or (ixviii) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity comply with the provisions of Section 4.4 or breaches any material representation or warranty set forth in Section 4.1.30 Schedule V of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness Agreement (other than (x) with respect those relating to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Companysolvency or adequacy of capital or adequacy of cash flow), as applicableand such failure results in an order of substantive consolidation of one (1) or voluntary Lien more of the Individual Borrowers with any other Person (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement another Individual Borrower or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present Liquor Subsidiary) in a bankruptcy or future Affiliate of Borrower (other than Guarantor, to the extent provided similar proceeding under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (Bankruptcy Code or any other Affiliate of Borrower) and neither Lender nor its successors federal or assigns shall have any right state bankruptcy or insolvency law, subject to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything a maximum liability equal to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan DocumentsBK Cap.
Appears in 2 contracts
Sources: Loan Agreement (W2007 Grace Acquisition I Inc), Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower (or any of Borrower’s members, managers partners shareholders, or Affiliates, whether direct or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower or the Borrower Parties only to the extent of Borrower’s or the Borrower Parties’ interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower or the Borrower Parties in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery Loan, including by reason of the Loan Documents and/or the Loanany claim under RICO;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (Guarantor or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralRestricted Party;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and or asbestos and any indemnification of Lender with respect thereto in either documentany Loan Document;
(iv) wrongful removal or destruction by Borrower or any Affiliate of Borrower of any portion of the Property after the occurrence of an Event of Default or any intentional physical waste of the Property by Borrower of any Affiliate thereof, provided, however, that such physical waste shall exclude wear and tear to the Property that occurs in the ordinary course of business of the Property;
(v) any Legal Requirement (including RICO) mandating the forfeiture by Borrower of the Property, or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower or any Restricted Party in connection therewith;
(vi) if Borrowerany misrepresentation, Mortgage Borrower, Senior Mezzanine miscertification or breach of warranty by Borrower or Operating Company fails to obtain Lender’s prior consent Guarantor with respect to any voluntary intentional Transfer as required by representation, warranty or certification contained in this Agreement, the Mortgage Loan Agreement or any other Loan Document or in any document executed in connection therewith, pursuant to any of the MortgagesLoan Documents or otherwise to induce Lender to make the Loan, or any advance thereof, or to release monies from any account held by Lender (including any reserve or escrow) or to take other action with respect to the Collateral (as applicabledefined in the Mortgage);
(vii) the misappropriation or conversion by or on behalf of Borrower or any of its Affiliates of (A) any Insurance Proceeds, (B) any Condemnation Proceeds, or (C) any Rents paid more than one (1) month in advance; provided such amounts are not applied to the payment of the Loan or the Operating Expenses of the Property;
(viii) failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Property that are superior to the Lien of the Mortgage, unless such charges are being contested in accordance herewith;
(ix) any security deposits, advance deposits or any other deposits collected by Borrower or any Affiliate thereof with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;; or
(viiix) if Borrower fails to permit on-site inspections of the Property, fails to provide financial information specifically required by this Agreement or fails to appoint a new Manager upon the request of Lender, each as required by, and in accordance with, the event of:terms and provisions of this Agreement or the Mortgage.
(Aa) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees Borrower colludes with or otherwise assists such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor Borrower from any Person; (Cc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Dd) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Borrower or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.Property; or
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to perform and observe the obligations contained herein or in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure actionan action under the UCC, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under this Agreement, the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or and the interest in the Collateral, or Collateral and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Pledge Agreement and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower or Borrower Principal, as applicable, only to the extent of Borrower’s 's or Borrower Principal's interest in the Collateral and in any other collateral given to Lender, and . Lender, by accepting this Agreement, the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not not, except as otherwise provided in this Section 15.1, ▇▇▇ for, seek or demand any deficiency judgment against Borrower or Borrower Principal in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 15.1 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreement or the other Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge Agreement; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Section 13.5 and Article 14 of this Agreement and the Environmental Indemnity), guaranty, master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Pledge Agreement and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower impair the enforcement of the assignment of leases provisions contained in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralAgreement; or (gvi) constitute a waiver of impair the right of Lender to enforce the liability and obligation of Borrower, by money obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower or Borrower Principal if necessary to obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under this Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual lossthe Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 15.1 to the contrary, damage, cost, expense, liability, claim or other obligation incurred by Borrower and Borrower Principal shall be personally liable to Lender (including attorneys’ fees on a joint and costs reasonably incurred) arising out of or in connection with the followingseveral basis for Losses due to:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower Principal or any Guarantor other Affiliate of Borrower or Borrower Principal in connection with the execution and the delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or Note, the MortgagesPledge Agreement, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered other Loan Documents, or any certificate, report, financial statement or other instrument or document furnished to Mortgage Lender upon a foreclosure of any at the time of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any closing of the Loan Documents, 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 during the term of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.Loan;
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Maguire Properties Inc), Mezzanine Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instruments or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against BorrowerBorrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instruments and the other Loan Documents, or in the CollateralProperties (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instruments and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instruments or the other Loan Documents. The provisions of this Section shall not, however,
, (a1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instruments; (c3) affect the validity or enforceability of any indemnity, guaranty or any similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (d4) impair the right rights of Lender to (A) obtain the appointment of a receiverreceiver and/or (B) enforce its security interest in the Accounts as provided in Articles 8 and 9 hereof; (e5) intentionally omittedimpair the enforcement of the assignment of leases and rents contained in the Security Instruments and in any other Loan Documents; (f6) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instruments or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperties (or any portion thereof); or (g7) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation reasonable out-of-pocket Loss incurred by Lender (including out-of-pocket attorneys’ fees and costs reasonably incurredincurred but in all events excluding consequential, punitive and special damages (except to the extent Lender is actually liable for such damages)) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower Party in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of any Borrower Party;
(iii) material physical waste to any Individual Property arising from the Loan Documents intentional acts or omissions of any Borrower Party (it being acknowledged that omissions to perform acts for which sufficient cash flow is not available from the Properties shall not be deemed an intentional omission for purposes of this clause (iii));
(iv) the removal or disposal by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Borrower Party or any Guarantor of its respective Affiliates of any funds portion of Borrower, Senior Mezzanine Borrower, Mortgage any Individual Property after an Event of Default unless such portion of any Individual Property so removed or so disposed of is replaced with property of equal utility and value or such removal or disposal was otherwise permitted pursuant to the terms and conditions hereof;
(v) the misapplication or conversion by any Borrower or Operating Company, including, without limitation, Party of (A) any Revenuesinsurance proceeds paid by reason of any loss, damage or destruction to any Individual Property (or any portion thereof), (B) any Net Liquidation Proceeds Awards or Insurance Proceedsother amounts received in connection with the Condemnation of all or a portion of any Individual Property, (C) any Awards received in connection with a Condemnation, Rents following an Event of Default and/or (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(ivvi) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach portion of any representationIndividual Property in accordance with the terms and provisions hereof; provided, warrantyhowever, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
Borrower shall have no liability under this subsection (vi) if Borrower(A) such Taxes, Mortgage Borrowercharges for labor or materials or other charges that can create liens are being contested in accordance with the terms and conditions hereof or (B) sufficient cash flow is not available from the Properties to pay such amounts; provided, Senior Mezzanine that, in no instance shall Borrower be released from any liability pursuant to this clause (vi) to the extent (1) such insufficiency of cash flow arises from the intentional misappropriation or Operating Company fails conversion of Rent by any Borrower Party or (2) Borrower incurred such charges after the occurrence and during the continuance of an Event of Default, except to obtain Lender’s prior consent the extent such charges were (I) necessary to protect against imminent danger to the health or safety of any Tenant or any Person at or in the immediate vicinity of any Individual Property or to prevent any imminent defect, damage or harm to any voluntary intentional Transfer as required Individual Property, (II) contracted for prior to such Event of Default or (III) consented to in writing by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableLender;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Individual Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Individual Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) the breach or violation by Borrower and/or any SPE Component Entity of any representation, warranty or covenant contained in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueArticle 5 hereof;
(ix) if Borrowerthe failure by Borrower to (A) permit on-site inspections of any Individual Property, Senior Mezzanine Borrower or Mortgage Borrower fails (B) provide any financial information regarding hereunder and/or pursuant to maintain its status as the other Loan Documents and/or (C) appoint a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 Qualified Manager pursuant to a Qualified Management Agreement upon the request of this Agreement; andLender which failure constitutes an Event of Default;
(x) if Borrowera breach of Section 11.1 and/or Section 11.2 hereof, Mortgage Borrowerwhich breach continues for three (3) Business Days after notice from Lender;
(xi) any material amendment, Senior Mezzanine material modification or voluntary termination of any Ground Lease by any Borrower or Operating Company fails to obtain without Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything expressly permitted pursuant to the contrary under this Agreement, neither any present terms hereof;
(xii) the termination or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate suspension of any Borrower shall have any personal liability, directly or indirectly, under or Health Care License arising in connection with the Loan Documents. Neither the negative capital account any grossly negligent or willful material violation of any Affiliate Health Care Requirement or otherwise by Borrower or any voluntary termination or rejection of Borrower in any such Health Care License by Borrower, in each instance, which termination, suspension or in rejection constitutes an Event of Default; or
(xiii) any other Affiliate violation of Borrower in any other Affiliate Article 6 hereof not otherwise covered pursuant to clauses (b)(iv) and (b)(v) immediately below, provided, however, for the avoidance of Borrowerdoubt, nor any obligation a Sale or Pledge resulting from the consummation of an enforcement action by Lender or the holder of any Affiliate Mezzanine Loan shall not be a Sale or Pledge in violation of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalArticle 6 hereof.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) a Bankruptcy Event occurs, (ii) the first full monthly payment of principal (if any) and interest under the Note is not paid when due; (iii) any representation, warranty or covenant contained in Article 5 is violated or breached and such breach or violation results in, or is a substantial factor in, a substantive consolidation of Borrower and/or any SPE Component Entity with any other Person in a bankruptcy or similar proceedings; (iv) if Borrower and/or any SPE Component Entity fails to obtain Lender’s prior written consent to (A) any voluntary indebtedness or (B) voluntary monetary lien encumbering any Individual Property to the extent such lien required Lender’s consent under this Agreement or the other Loan Documents; or (v) if Borrower and/or any SPE Component Entity fails to obtain Lender’s prior written consent to any voluntary transfer of any material portion of any Individual Property or to any voluntary act that causes a change in the ownership of Borrower and/or any SPE Component Entity to the extent such ownership change required Lender’s consent under this Agreement; provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof. Notwithstanding any provision contained herein or in any other Loan Document, no direct or indirect shareholder, partner, member, principal, affiliate, employee, officer, director, agent or representative of Borrower (each, a “Related Party”) (other than (a) Guarantor in accordance with the Guaranty and the Environmental Indemnity and (b) any Manager that is an Affiliate of Borrower in accordance with any Loan Document to which such Manager may be a party) shall have any personal liability for, nor be joined as a party to any action with respect to (i) the payment of any sum of money which is or may be payable hereunder or under any other Loan Documents, including, but not limited to, the repayment of the Loan or (ii) the performance or discharge of any covenants, obligations or undertakings of Guarantor or any Related Party with respect thereto. In addition to the foregoing, anything contained herein or in the other Loan Documents notwithstanding, in no event will the assets of any Related Party (other than Guarantor in accordance with the Guaranty and the Environmental Indemnity) be available to satisfy any obligation of Borrower hereunder.
Appears in 2 contracts
Sources: Loan Agreement (NorthStar Healthcare Income, Inc.), Loan Agreement (Northstar Realty Finance Corp.)
Exculpation. (a) Subject to the qualifications below, Lender Administrative Agent shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender Administrative Agent may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder Administrative Agent to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, or in the CollateralProperties, the Rents, or any other collateral given to Lender Administrative Agent pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to LenderAdministrative Agent, and LenderAdministrative Agent, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender Administrative Agent to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementMortgages; (c) affect the validity or enforceability of the Guaranty or any Guaranty made in connection with the Loan Environmental Indemnity or any of the rights and remedies of Lender Administrative Agent thereunder; (d) impair the right of Lender Administrative Agent to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the collateral assignment of leases and rents contained in the Mortgage; (f) constitute a prohibition against Lender Administrative Agent to seek a deficiency judgment against Borrower in order to fully realize the security granted by each of the Pledge Agreement Mortgages or to commence any other appropriate action or proceeding in order for Lender Administrative Agent to exercise its remedies against all of the CollateralProperties; or (g) constitute a waiver of the right of Lender Administrative Agent to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation to the extent actually incurred by Lender Administrative Agent and Lenders (including attorneys’ fees fees, costs and costs expenses reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional materially and willful misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor SPE Constituent Entity or any of their respective Affiliates in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) willful misconduct of Borrower or any SPE Constituent Entity or any of their respective Affiliates which results in physical damage or waste to the misappropriation, Property;
(iii) the removal or disposal of any portion of any Individual Property during the continuance of an Event of Default;
(iv) the misappropriation or conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrowerany SPE Constituent Entity, Senior Mezzanine Borrower, Operating Company Guarantor or any Guarantor of any funds their respective Affiliates of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenuesinsurance proceeds paid by reason of any Casualty or proceeds of the PLL Policy, (B) any Net Liquidation Proceeds Awards or Insurance Proceeds, (C) any Awards other amounts received in connection with a Condemnation, (DC) any Rents or security deposits (or any item during the continuance of Revenue, from whatever source) following an Event of Default, or (ED) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document(intentionally omitted);
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine a material breach by Borrower or Operating Company fails any SPE Constituent Entity or material failure by Borrower or any SPE Constituent Entity to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, comply with the Mortgage Loan Agreement covenants set forth in Section 5.1.29(a) or the Mortgages, as applicable(b) hereof;
(vii) if Borrower voluntarily encumbers any security deposits, advance deposits or Individual Property by any Lien securing indebtedness for borrowed money (other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon than a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases Permitted Encumbrance) without Unanimous Lender’s prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;written consent; or
(viii) in the event of:
(A) if Borrower, Mortgage Borrowerany SPE Constituent Entity, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company Affiliate fails to obtain Unanimous Lender’s prior written consent to any voluntary Indebtedness Transfer of an Individual Property or any direct or indirect interest therein in any case in which such consent is required to be obtained pursuant to Section 5.2.10 hereof (other than provided, however, that a Transfer by reason of a foreclosure (xor deed-in-lieu or assignment deed-in-lieu thereof) with respect to Mortgage Borrower, Permitted Indebtedness and by Administrative Agent or any Lender (yor its designee) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with collateral for the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time not be deemed to be the property or an asset a Transfer in violation of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalSection 5.2.10 hereof).
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender (A) Administrative Agent shall not be deemed to have waived any right which Lender Administrative Agent may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Mortgages or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender Lenders and all amounts due to Administrative Agent in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event of:
(i) Borrower or any SPE Constituent Entity filing a voluntary petition under the Bankruptcy Code; (ii) the filing of an involuntary petition against Borrower or any SPE Constituent Entity under the Bankruptcy Code in which Borrower, any SPE Constituent Entity, Guarantor or any Affiliate of Guarantor colludes with any involuntary petition against Borrower or any SPE Constituent Entity from any Person; (iii) Borrower, any SPE Constituent Entity, Guarantor or any Affiliate of Guarantor filing an answer consenting to or otherwise joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code; or (iv) Borrower, any SPE Constituent Entity or Guarantor consenting to or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any SPE Constituent Entity or any Individual Property (or portion thereof).
Appears in 2 contracts
Sources: Loan Agreement (Excel Trust, L.P.), Loan Agreement (Excel Trust, L.P.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower (or any of Borrower’s members, managers, partners, shareholders, officers, directors or Affiliates, whether director or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, Collateral or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees for itself and its successors and assigns that it and its successors and assigns shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Pledge Agreement; (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrower under the terms of this Agreement, by money judgment or otherwise, to the extent of any actual out of pocket loss, damage, cost, expense, liability, claim or other obligation suffered or incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i1) fraud or intentional material misrepresentation or failure to disclose a material fact by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor of the Borrower Parties in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii2) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of Borrower or any of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralParties;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v3) the breach of any representation, warranty, covenant or indemnification provision in this Agreement or the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentany of such documents;
(vi4) willful physical waste of the Property to the extent that sufficient cash flow of the Property is available to prevent such waste;
(5) the removal or disposal of any portion of the Property after an Event of Default;
(6) the misappropriation or conversion by or on behalf of Borrower of (A) any insurance proceeds paid by reason of any loss or damage, (B) any Award received in connection with a condemnation or similar proceeding, (C) any Rents or other revenues derived from the Property following an Event of Default or (D) any Rents paid more than one (1) month in advance following an Event of Default;
(7) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company any other entity that is required to be a Single-Purpose Entity fails to obtain Lender’s prior consent to comply with the SPE Covenants or maintain its status as a Single-Purpose Entity; or
(8) if any voluntary intentional Transfer occurs other than as required permitted by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;.
(viia) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower or any of their respective Affiliates, agents or employees the Borrower Parties colludes with or otherwise assists such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor Borrower from any Person; (Cc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor of the Borrower Parties filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Dd) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor of the Borrower Parties consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or all or any Guarantor portion of the Property; (e) Borrower or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower Parties making an assignment for the benefit of creditors (other than Lender)creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
; or (ixii) if Borrower, Senior Mezzanine Borrower or Mortgage any Borrower fails to maintain its status as a Special Purpose Entity Party, or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have Party, in any personal liabilityjudicial or quasi-judicial case, action or proceeding directly or indirectly, under indirectly contests the validity or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any enforceability of the Loan DocumentsDocuments or directly or indirectly contests or intentionally hinders, delays or obstructs the pursuit of any rights or remedies by 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 (including the commencement and/or prosecution of a foreclosure action after an Event of Default. The provisions of this Article 10 shall survive the Bankruptcy Code to file a claim for expiration and termination of this Agreement and the full amount repayment of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan DocumentsIndebtedness.
Appears in 2 contracts
Sources: Mezzanine Loan Documents (Strategic Storage Trust VI, Inc.), Mezzanine Loan Agreement (Strategic Storage Trust VI, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral Collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and each Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 9.2 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by or on behalf of Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Manager, any Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Manager, any Operating Company or any Guarantor of any funds of any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, Mortgage Borrower any Manager or any Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Insurance Proceeds or Insurance Proceedspaid by reason of any Casualty, (C) any Awards received in connection with a Condemnation, or (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Manager, any Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Manager, any Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender Lender, Servicer or Collateral Agent with respect thereto in either document;
(vi) if any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower or any Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer (whether by any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower or any Operating Company) as required by this Agreement, the Mortgage Loan Agreement Agreement, the Senior Mezzanine Loan Agreement, the Pledge Agreement, any pledge agreement constituting a Senior Mezzanine Loan Document or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender Lender, Mortgage Loan Collateral Agent or the Servicer (as defined in the Mortgage Loan Agreement) upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
: (A) any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against any Borrower, any Mortgage Borrower, any Senior Mezzanine Borrower, any Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which such Borrower, such Mortgage Borrower, such Senior Mezzanine Borrower, such Operating Company or any such Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage such Borrower, Senior Mezzanine Borrower, such Operating Company or any such Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against such Borrower, such Mortgage Borrower, Senior Mezzanine Borrower, such Operating Company or any such Guarantor from any Person; (C) any Borrower, any Mortgage Borrower, Senior Mezzanine Borrower, any Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.any
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Fourth Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of any assignment of leases contained in the Security Instrument; or (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; Property (or any portion thereof).
(gb) constitute a waiver of Nothing contained herein shall in any manner or way release, affect or impair the right of Lender to enforce the liability recover, and obligation of BorrowerBorrower shall be fully and personally liable and subject to legal action, by money judgment or otherwise, to the extent of for any actual loss, damage, cost, expense, liabilitydamage, claim or other obligation incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurredcourt costs) incurred or suffered by Lender arising out of or in connection with the following:
(i) fraud or intentional willful misrepresentation by Borrower or any of its affiliates, or Guarantor or any agent, employee or other person with actual or apparent authority to make statements or representations on behalf of Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any affiliate of Borrower or any Guarantor in connection with the execution and delivery of Loan (“apparent authority” meaning such authority as the Loan Documents and/or principal knowingly or negligently permits the Loanagent to assume, or which he holds the agent out as possessing);
(ii) the misappropriationgross negligence or willful misconduct of Borrower or Guarantor, conversion or misapplication any affiliate, agent, or employee of the foregoing;
(iii) material physical waste of the Property (or any portion thereof);
(iv) the removal or disposal of any portion of the Property in contravention violation of the terms of the Loan Documents Documents;
(v) the misapplication, misappropriation, or conversion by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any RevenuesInsurance Proceeds paid by reason of any loss, damage or destruction to the Property (or any portion thereof), (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of the Property, (C) any Rents or other Property income or collateral proceeds, or (D) any Rents paid more than one month in advance (including, but not limited to, security deposits);
(vi) following the occurrence of an Event of Default, the failure to either apply rents or security deposits other Property income, whether collected before or after such Event of Default, to the ordinary, customary, and necessary expenses of operating the Property or, upon demand, to deliver such rents or other Property income to Lender;
(vii) failure to maintain insurance or to pay taxes and assessments, or to pay charges for labor or materials or other charges or judgments that can create Liens on any item portion of Revenue, from whatever source) the Property (unless Lender is escrowing funds therefor and fails to make such payments or has taken possession of the Property following an Event of Default, or (E) any distribution has received all Rents from the Property applicable to the period for which such insurance, taxes or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateralitems are due, and thereafter fails to make such payments);
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(viiviii) any security deposits, advance deposits or any other deposits collected with respect to the Property (or any of the Properties portion thereof) which are not delivered to Mortgage Lender upon a foreclosure of the Property (or any of the Properties portion thereof) or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiiix) the breach of the representation by Borrower that on the Closing Date, the Property and all Improvements at the Property were in material compliance with applicable laws; or
(x) any failure by Borrower to comply with any of the event of:representations, warranties or covenants set forth in Sections 4.1.37 or 5.1.19 hereof.
(c) Notwithstanding anything to the contrary in this Agreement, the Note or any of the other Loan Documents,
(i) Borrower and any general partner of Borrower shall be personally liable for the Debt if (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower fails to obtain Lender’s prior written consent to any Transfer as required by this Agreement or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency lawSecurity Instrument; (B) Borrower fails to obtain Lender’s prior written consent to any Indebtedness or voluntary Lien encumbering the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Property (or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Personportion thereof); (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or Borrower shall at any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making time hereafter make an assignment for the benefit of creditors its creditors; (other than Lender)D) Borrower fails to permit on-site inspections of any Individual Property, fails to maintain its status as a Single Purpose Entity or admittingcomply with any representation, warranty or covenant set forth in Section 4.1.30 hereof or fails to appoint a new property manager upon the request of Lender as permitted under this Agreement, each as required by, and in accordance with, the terms and provisions of this Agreement or the Security Instrument; (E) Borrower admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
; (ixF) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as make the first full monthly payment of principal and interest on or before the first Payment Date; (G) Borrower files, consents to, or acquiesces in a Special Purpose Entity petition for bankruptcy, insolvency, dissolution or breaches liquidation under the Bankruptcy Code or any material representation other Federal or warranty set forth State bankruptcy or insolvency law, or there is a filing of an involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine which Borrower or Operating Company fails to obtain Lender’s prior consent to Guarantor colludes with, or otherwise assists any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or party in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrowersuch filing, or in solicits or causes to be solicited petitioning creditors for any other Affiliate of involuntary petition against Borrower in from any other Affiliate of Borrower, nor party; or (H) the Property or any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower part thereof shall at any time hereafter become property of the estate or an asset in (1) a voluntary bankruptcy, insolvency, receivership, liquidation, winding up, or other similar type of proceeding, or (2) an involuntary bankruptcy or insolvency proceeding (other than one filed by Lender) that is not dismissed within sixty (60) days of filing.
(d) Nothing herein shall be deemed to be the property or an asset constitute a waiver by Lender of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section Sections 506(a), 506(b), 1111(b) or any other provisions provision of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan DocumentsDebt.
Appears in 2 contracts
Sources: Loan Agreement (TNP Strategic Retail Trust, Inc.), Loan Agreement (TNP Strategic Retail Trust, Inc.)
Exculpation. (a) Subject to the further qualifications belowof this Section 9.4, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section 9.4(a) shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (ciii) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; or (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all the Property.
(b) The provisions of the Collateral; or (gSection 9.4(a) shall not constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the followingfollowing from and after the date hereof:
(i) fraud or intentional intentional, material misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Guarantor or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loantheir respective Affiliates;
(ii) the misappropriation, conversion or misapplication in contravention any willful act of material waste of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Property or any Guarantor of any funds damage to the Property arising from the intentional misconduct or gross negligence of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (Guarantor or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateraltheir respective principals;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(iv) the removal or disposal of any portion of the Property after an Event of Default;
(v) the misappropriation, intentional misapplication or conversion by Borrower or any of its Affiliates of (A) any Insurance Proceeds paid by reason of any Casualty, (B) any Awards received in connection with a Condemnation, (C) any Rents following an Event of Default and not applied to Debt Service, Operating Expenses or otherwise paid to Lender, or (D) any Rents paid more than one (1) month in advance;
(vi) failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Property to the extent funds are available for such purpose in, or have been disbursed to Borrower for such purpose from, the Cash Management Account (it being understood that there shall be no recourse if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company Lender is obligated to apply such funds held in any applicable Reserve Account to pay the foregoing and fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicabledo so);
(vii) intentional failure by Borrower and Manager to continue to operate the Casino Component at any time in accordance with the requirements of Section 5.1.26 and any voluntary relinquishment of any material Gaming License by Borrower or Manager;
(viii) any security deposits, advance deposits or any other deposits collected by Borrower or any Borrower Party with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence occurrence; of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiiix) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law failure by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails SPE Entity to maintain its status as a Special Single Purpose Entity or breaches any material representation or warranty set forth as required by, and in Section 4.1.30 accordance with, the terms and provisions of this Agreement; andAgreement or the Security Instrument if by reason thereof any of the assets of such SPE Entity are consolidated into the bankruptcy estate of any other Person;
(x) if Borrower, Mortgage Borrower, Senior Mezzanine failure by Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien encumbering the Property as required by this Agreement or the Security Instrument; and
(other than Permitted Encumbrancesxi) encumbering failure by Borrower to obtain Lender’s prior consent to any of the Properties, Senior Mezzanine Collateral or Collateral Transfer as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(bc) Notwithstanding anything to the contrary in this Agreement, the Note or 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 Indebtedness Debt secured by the Security Instrument or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (ii) the Debt shall be fully recourse to Borrower in the event of: (A) Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower or Guarantor or any of their respective Affiliates, agents or employees colludes with or otherwise assists such other Person, or Borrower or Guarantor or any of their respective Affiliates, agents or employees soliciting, or causing to be solicited, petitioning creditors for an involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (C) Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Property; or (E) Borrower making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due.
Appears in 2 contracts
Sources: Loan Agreement (Caesars Acquisition Co), Loan Agreement (Harrahs Entertainment Inc)
Exculpation. (a) Subject to the qualifications below, Lender Payee shall not enforce the liability and obligation of Borrower Maker to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Note or the other Loan Documents Mortgage by any action or proceeding wherein a money judgment shall be sought against BorrowerMaker or any general or limited partner of Maker (hereinafter collectively referred to as the "Exculpated Parties"), except that Lender Payee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder Payee to enforce and realize upon its interest under the this Note, this Agreementthe Mortgage, the Pledge Agreement Other Security Documents, and the other Loan Documents, or interest in the CollateralMortgaged Property, or the Rents (as defined in the Mortgage) and any other collateral given to Lender pursuant to Payee created by this Note, the Loan Mortgage and the Other Security Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower the Exculpated Parties only to the extent of Borrower’s Maker's interest in the Collateral Mortgaged Property, in the Rents and in any other collateral given to Lender, and LenderPayee. Payee, by accepting the Note, this Agreement, the Pledge Agreement Note and the other Loan DocumentsMortgage, agrees that it shall not ▇▇▇ sue for, seek or demand any deficiency judgment against Borrower the Exculpated Parties in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith the Mortgage, the Other Security Documents or this Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section paragraph shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsMortgage, the Other Security Documents or this Note; (bii) impair the right of Lender Payee to name Borrower Maker as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan Mortgage, this Note, or any of the rights and remedies of Lender thereunderOther Security Documents; (div) impair the right of Lender Payee to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the First Assignment of Leases and Rents dated the date hereof given by Maker to Payee executed in connection herewith; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of impair the right of Lender Payee to enforce the liability and obligation of Borrower, by money judgment or otherwise, bring suit with respect to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by BorrowerMaker, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company the Exculpated Parties or any Guarantor other person or entity in connection with the execution and delivery Mortgage, this Note or the Other Security Documents; (vii) impair the right of Payee to obtain the Rents received by any of the Loan Documents and/or Exculpated Parties after the Loan;
(ii) the misappropriation, conversion or misapplication in contravention occurrence of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default; (viii) impair the right of Payee to bring suit with respect to the Exculpated Parties' misappropriation of tenant security deposits or Rents collected in advance; (ix) impair the right of Payee to obtain insurance proceeds or condemnation awards due to Payee under the Mortgage; (x) impair the right of Payee to enforce the provisions of sub-paragraphs 36(g) through 36(j), inclusive and paragraphs 34 and 35 of the Mortgage against the Maker (excluding the general and limited partners of Maker); or (Exi) any distribution or other payments made in connection with impair the right of Payee to recover any part of the Collateral or Senior Mezzanine Collateral;
Debt from the Maker (iiiexcluding the general and limited partners of Maker) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) following the breach of any representation, warranty, covenant contained in paragraphs 9 or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any 56 of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalMortgage.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: First Mortgage Note (Century Properties Fund Xii), First Mortgage Note (Century Properties Fund Xvi)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
: (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.Operating
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Exculpation. Notwithstanding any provision in this Agreement to the contrary (other than the proviso below), it is agreed and understood that Purchaser shall look solely to the assets of Seller in the event of any breach or default by Seller under this Agreement, and not to the assets of: (a) Subject to the qualifications belowany person or entity which is a member, Lender shall not enforce the manager or partner in Seller, if Seller is a limited liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement company or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documentspartnership, or which otherwise owns or holds any ownership interest in the CollateralSeller, directly or indirectly (each such partner or other holder or owner of any other collateral given interest in Seller being referred to Lender pursuant to the Loan Documentsherein as a “Subtier Owner”); (b) any person or entity which is a member, manager or partner in or otherwise owns or holds any ownership interest in any Subtier Owner, whether directly or indirectly; (c) any person or entity serving as an officer, director, employee or otherwise for or in Seller; or (d) any person or entity serving as an officer, director, employee or otherwise for or in any Subtier Owner; provided, however, thatthis provision does not limit the liability of Guarantor (as hereinafter defined) under Section 12.20 hereof or under the Master Lease Guaranty. This Agreement is executed by one or more persons (the “Signatories”, except whether one or more) of Seller solely in their capacities as specifically provided herein, representatives of the Seller or a Subtier Owner of Seller and not in their own individual capacities. Purchaser hereby releases and relinquishes the Signatories from any judgment in and all personal liability for any such action matters or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
(a) constitute a waiver, release or impairment claims of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties kind which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, arise under or in connection with the Loan Documentsor as a result of this Agreement. Neither the negative capital account The foregoing release of liability shall be effective with respect to and shall apply to all claims against any members, managers and partners of Seller (if Seller is a limited liability company or a partnership) and any members, managers and partners of any Affiliate Subtier Owner (if such Subtier Owner is a limited liability company or a partnership) regardless of Borrower in Borrowerwhether such claims arise as a result of any liability which the Signatories may have as members, managers or partners of the Seller or any Subtier Owner, or in otherwise. Seller acknowledges that Seller’s obligations with respect to any other Affiliate of Borrower in any other Affiliate of Borrowercovenant, nor any obligation indemnity, representation or warranty under this Agreement which expressly survives the Closing shall be considered a liability for purposes of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalmember distribution limitation imposed under applicable Texas limited liability laws.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Agreement of Sale and Purchase, Agreement of Sale and Purchase (Stratus Properties Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower (or any of Borrower’s members, managers, partners, shareholders, or Affiliates, whether direct or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower or the Borrower Parties only to the extent of Borrower’s or the Borrower Parties’ interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower or the Borrower Parties in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all the Collateral; (f) impair the enforcement of the CollateralAssignment of Leases and Rents; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including including, without limitation, attorneys’ fees and costs reasonably incurred) ), arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery Loan, including by reason of the Loan Documents and/or the Loanany claim under RICO;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine BorrowerGuarantor, Operating Company Principal or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralRestricted Party;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and or asbestos and any indemnification of Lender with respect thereto in either documentany Loan Document;
(iv) wrongful removal or destruction by Borrower or any Affiliate of Borrower, of any portion of the Property or the Collateral after the occurrence of an Event of Default or any intentional physical waste of the Property by Borrower of any Affiliate thereof, provided, however, that such physical waste shall exclude wear and tear to the Property that occurs in the ordinary course of business of the Property;
(v) any Legal Requirement (including RICO) mandating the forfeiture by Borrower or Mortgage Borrower of the Property or the Collateral, or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower or any Restricted Party in connection therewith;
(vi) if Borrowerany misrepresentation, Mortgage Borrower, Senior Mezzanine miscertification or breach of warranty by Borrower or Operating Company fails to obtain Lender’s prior consent Guarantor with respect to any voluntary intentional Transfer as required by representation, warranty or certification contained in this Agreement, the Mortgage Loan Agreement or any other Loan Document or in any document executed in connection therewith, pursuant to any of the MortgagesLoan Documents or otherwise to induce Lender to make the Loan, or any advance thereof, or to release monies from any account held by Lender (including any reserve or escrow) or to take other action with respect to the Collateral (as applicabledefined in the Mortgage);
(vii) the misappropriation or conversion by Borrower or Mortgage Borrower of (A) any Net Liquidation Proceeds or Insurance Proceeds, (B) any Awards received in connection with a Condemnation, (C) any Rents following an Event of Default or any Rents paid more than one (1) month in advance; or (D) any distribution or other payments made in connection with any part of the Collateral provided such amounts are not applied to the payment of the Loan or the Operating Expenses of the Property;
(viii) failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Property that are superior to the Lien of the Mortgage, unless such charges are being contested in accordance herewith;
(ix) any security deposits, advance deposits or any other deposits collected by Borrower, Mortgage Borrower or any Affiliate thereof with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiix) any breach of any representation, warrant or covenant contained in Section 3 of the event of:Pledge Agreement;
(Axi) Borrowerif Borrower or Mortgage Borrower fails to permit on-site inspections of the Property, fails to provide financial information specifically required by this Agreement or fails to appoint a new property manager upon the request of Lender, each as required by, and in accordance with the terms and provisions of this Agreement or the other Loan Documents; or
(xii) if the Operating Partnership shall default under the Vacant Space Master Lease beyond any applicable notice and/or cure period contained therein, if the Vacant Space Master Lease shall have been amended or modified (except as specifically provided in Section 3.1.19 hereof), without Lender’s prior written consent or if the Vacant Space Master Lease shall have been terminated, cancelled or surrendered (except as specified in Section 3.1.19 hereof) without Lender’s prior written consent, or if the Operating Partnership is the subject of a Bankruptcy Action, other than an involuntary Bankruptcy Action which is dismissed within ninety (90) days.
(a) Borrower or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Borrower or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person; (Dc) Borrower, Borrower or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Borrower or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Borrower or any portion thereof, other than at of the request of LenderProperty or the Collateral; or (Ed) Borrower, Borrower or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower making an assignment for the benefit of creditors (other than Lender)creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
; (ix2) if Borrower, Senior Mezzanine the first Monthly Interest Payment is not paid when due; (3) if Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth as required by and in Section 4.1.30 accordance with the terms of this AgreementAgreement and there is a substantive consolidation of Borrower or Mortgage Borrower with any other Person; and
(x4) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral Property as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge ; or (5) if Borrower fails to obtain Lender’s prior consent to any Transfer as required by this Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalMortgage.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to Except as otherwise provided herein, in the qualifications belowPledge Agreement or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower Pledgor to perform and observe the obligations contained in the Note, this Agreement, the Note or the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerPledgor, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under this Agreement, the Note, the Pledge Agreement, the other Loan Documents, and the Collateral, and any other collateral given to Lender created by this Agreement, the Note, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Pledgor only to the extent of BorrowerPledgor’s interest in the Collateral and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note and the other Loan DocumentsPledge Agreement, agrees that it shall not not, except as otherwise provided herein or in the Pledge Agreement, ▇▇▇ for, seek or demand any deficiency judgment against Borrower Pledgor in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreement or the other Loan Documents; (bii) impair the right of Lender to name Borrower Pledgor as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge Agreement; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, the Environmental Indemnity), guaranty (including, without limitation, the Guaranty), master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Pledge Agreement, or the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of impair the right of Lender to enforce Sections 4.1.9, 4.1.29, 5.1.9 and 5.2.8 hereof; or (vi) impair the liability and obligation right of Borrower, by money Lender to obtain a deficiency judgment or otherwiseother judgment on the Note against Pledgor if necessary to (A) preserve or enforce its rights and remedies against the Collateral or (B) obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under the terms of this Agreement or the Pledge Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual lossthe Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 9.4 to the contrary, damage, cost, expense, liability, claim or other obligation incurred by Pledgor shall be personally liable to Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with for the following:
Losses it incurs due to: (i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and the delivery of this Agreement, the Note, the Pledge Agreement, the other Loan Documents and/or the Loan;
or any Mortgage Loan Document; (ii) the misappropriation, conversion Pledgor’s or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company ’s misapplication or any Guarantor misappropriation of any funds of Borrower, Senior Mezzanine Borrower, Rents received by Pledgor or Mortgage Borrower after the occurrence of a Default or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, ; (iii) Pledgor’s or Mortgage Borrower’s misapplication or misappropriation of Security Deposits or Rents collected more than thirty (E30) days in advance; (iv) Pledgor’s or Mortgage Borrower’s misapplication or the misappropriation of Insurance Proceeds or Awards; (v) Pledgor’s or Mortgage Borrower’s misapplication or the misappropriation of Net Liquidation After Debt Service or any distribution distributions or other payments made in connection with respect of any part of the Collateral Property or Senior Mezzanine the Collateral;
; (iiivi) Pledgor’s making a distribution to its equity owners after the misappropriation, conversion or misapplication by Borrower, occurrence of an Event of Default; (vii) Mortgage Borrower’s failure to pay Taxes, Senior Mezzanine BorrowerOther Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Mortgage Lender pursuant to the terms of Section 7.2 of the Mortgage Loan Agreement, Operating Company charges for labor or materials or other charges that can create Liens on the Properties; (viii) Pledgor’s failure to return or to reimburse Lender for all Personal Property taken from any Guarantor Properties by or on behalf of any security deposits Mortgage Borrower and not replaced with Personal Property of the same utility and of the same or Rents paid more than one greater value; (1) month in advance;
(ivix) any act of actual intentional physical waste or arson by BorrowerPledgor, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or Principal or any Affiliate or thereof or Guarantor;
; (vx) any fees or commissions paid by Pledgor to Principal or any Affiliate of Pledgor or Principal or Guarantor in violation of the breach terms of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Note, the Pledge Agreement or the Mortgages, as applicable;
other Loan Documents; (viixi) any security deposits, advance deposits Pledgor’s failure to comply with the provisions of Sections 4.1.40 and 5.1.19 of this Agreement; (xii) Pledgor ‘s or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon Principal’s default under Section 4.1.36 hereof (excluding a foreclosure of any of the Properties default under clauses (h) or action in lieu thereof, except (q) to the extent any that such security deposits were applied in accordance with default arises solely from insufficient cash flows from the terms and conditions of any Collateral); or (xiii) the termination or cancellation of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure ▇▇▇▇▇▇▇ Ground Lease for any reason or action in lieu thereof;under any circumstances whatsoever.
(viiic) Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set forth in Subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect (i) in the event of:
of a default under Section 5.2.10 hereof, (ii) if any Individual Property, the Collateral or any part thereof shall become an asset in (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; proceeding or (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law proceeding commenced by any Person (other than Lender) in which BorrowerPledgor or Mortgage Borrower colludes with, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or otherwise assists such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower Pledgor or Mortgage Borrower fails to maintain its status as a Special Purpose Entity from any Person or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and(iii) if the first Monthly Debt Service Payment Amount is not paid when due.
(xd) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower Nothing herein shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset a waiver of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 provision of the Bankruptcy Code to file a claim for the full amount of the Indebtedness indebtedness secured by the Pledge Agreement or to require that all collateral shall continue to secure all of the Indebtedness indebtedness owing to Lender in accordance with this Agreement, the Note, the Pledge Agreement and the other Loan Documents.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.), Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Exculpation. (a) Subject to the qualifications belowprovisions of this Section, Borrower’s liability under this Note, the Security Instruments or the Other Security Documents shall only extend to the Mortgaged Property and other collateral given to secure the Debt, and Lender shall not enforce the such liability and obligation against any other asset, property or funds of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action person or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documentsentity constituting Borrower; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section foregoing shall not, however,
: (a) constitute a waiverimpair the right of lender to bring suit and obtain personal, release recourse judgment against any person or impairment entity (including Borrower or any person or entity constituting Borrower) relating to any losses sustained by Lender in connection with any fraud, intentional misrepresentation, waste, or misappropriation of any obligation evidenced tenant security deposits or secured rents collected more than one (1) month in advance by any of the Loan DocumentsBorrower; (b) impair the right of Lender to name name, and obtain a judgment against any person or entity (including Borrower as or any person or entity constituting Borrower) to the extent required by law to either obtain a party defendant in judgment of specific performance with respect to any action of the provisions of this Note, the Security Instruments or suit for foreclosure any of the Other Security Documents, or to foreclose the Security Instruments and sale under obtain title to the Pledge AgreementMortgaged Property and other collateral given to secure the Debt; (c) affect the validity or enforceability of, or impair the right of Lender to bring suit and obtain personal, recourse judgment against any person or entity (including Borrower or any Guaranty person or entity constituting Borrower) to enforce any guaranty, indemnity or release of liability made by such person or entity (whether made in connection with this Note, the Loan or Security Instruments, any of the rights and remedies of Lender thereunderOther Security Documents or in any other separate agreement); (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any Assignment of Leases and Rents executed in connection herewith; or (f) constitute a prohibition against affect the validity or enforceability of, or impair the right of Lender to seek a deficiency bring suit and obtain personal, recourse judgment against any person or entity (including Borrower or any person or entity constituting Borrower) relating to any losses sustained by Lender in order to fully realize the security granted by the Pledge Agreement or to commence connection with any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateralprovisions of this Note, the Security Instruments or any of the Other Security Documents requiring that: (i) any person or entity maintain any insurance over any of the Mortgaged Property, or (ii) any insurance proceeds or condemnation awards be paid to Lender; or (g) constitute a waiver of impair the right of Lender to enforce the liability bring suit and obligation of Borrowerobtain personal, by money recourse judgment against any person or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender entity (including attorneys’ fees and costs reasonably incurredBorrower or any person or entity constituting Borrower) arising out for the full amount of the Debt if the Mortgaged Property or in connection with the following:
any part thereof shall become an asset in: (i) fraud a voluntary bankruptcy or intentional misrepresentation by Borrowerinsolvency proceeding, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion an involuntary bankruptcy or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, insolvency proceeding: (A) which is commenced by any Revenuesperson or entity controlling, controlled by or under common control with borrower (the “Borrowing Group”) or (B) in which any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part member of the Collateral Borrowing Group objects to a motion by Lender for relief from any stay or Senior Mezzanine Collateral;
(iii) injunction from the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor foreclosure of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits Security Instruments or any other deposits collected with respect to any of remedial action permitted under this Note, the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Security Instruments or any of the PropertiesOther Security Documents. Items (a) through (g) above are collectively the “Non-Recourse Exceptions”. Borrower’s liability under the Non-Recourse Exceptions, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or excepting item (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lenderg), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything shall be limited to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate amount of any Borrower shall have any personal liability, directly losses or indirectly, under or damages sustained by Lender in connection with the Loan Documentssuch Non-Recourse Exceptions. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower Nothing herein shall at any time be deemed to be the property or an asset a waiver of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section Sections 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 Indebtedness Debt secured by the Security Instruments or to require that all of the Mortgaged Property and other collateral given to secure the Debt shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan DocumentsDebt.
Appears in 2 contracts
Sources: Promissory Note (Sovran Self Storage Inc), Promissory Note (Sovran Acquisition LTD Partnership)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrowers (or any of Borrowers’ members, managers partners shareholders, officers, directors or Affiliates, whether direct or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Agreements or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against either Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Agreements and the other Loan Documents, or in any or all of the Collateral, Collateral or any other collateral given to Lender pursuant to the Pledge Agreements and the other Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrowers or the Borrower Parties only to the extent of Borrower’s Borrowers’ or the Borrower Parties’ interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Agreements, and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against either Borrower or the Borrower Parties in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Agreements, or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower Borrowers as a party defendant defendants in any action or suit for foreclosure and sale under the Pledge AgreementAgreements; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower Borrowers in order to fully realize the security granted by the Pledge Agreement Agreements or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperties; or (ge) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrowers, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.: 97
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section 10.1 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgage or to exercise its remedies against all of the CollateralProperty; or (gvii) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
(ia) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Sole Member or any Guarantor in connection with the execution and delivery of obtaining the Loan Documents and/or the Loan(or any portion thereof);
(iib) the misappropriation, conversion or misapplication in contravention intentional physical waste of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Property or any Guarantor portion thereof, or after an Event of Default the removal or disposal of any funds portion of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, the Property without limitation, replacement;
(Ac) any Revenues, (B) Proceeds paid by reason of any Net Liquidation Proceeds Insured Casualty or Insurance Proceeds, (C) any Awards Award received in connection with a CondemnationCondemnation or other sums or payments attributable to the Property not applied in accordance with the provisions of the Loan Documents (except to the extent that Borrower did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums or payments);
(Dd) any all Rents of the Property received or security deposits collected by or on behalf of the Borrower after an Event of Default and not deposited into the Deposit Account or applied to payment of Principal and interest due under the Notes, and to the payment of actual and reasonable operating expenses of the Property, as they become due or payable (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or any item similar judicial proceeding in which Borrower is legally prevented from directing the disbursement of Revenue, from whatever sourcesuch sums);
(e) misappropriation (including failure to turn over to Lender on demand following an Event of Default) of tenant security deposits and rents collected in advance, or (E) any distribution or other payments made in connection with any part of funds held by Borrower for the Collateral or Senior Mezzanine Collateralbenefit of another party;
(iiif) the misappropriationfailure to pay Taxes, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month provided Borrower shall not be liable to the extent funds to pay such amounts are available in advancethe Tax and Insurance Subaccount and Lender failed to pay same;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(vg) the breach of any representation, warranty, covenant or indemnification provision in the any Loan Document concerning Environmental Indemnity Agreement concerning environmental lawsLaws or Hazardous Substances, hazardous substances including Section 4.21 hereof and asbestos Section 5.8 hereof, and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
clauses (viii) in the event of:through (xi) of Section 5.30 hereof; or
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bh) the filing breach of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty ’s covenants set forth in Section 4.1.30 of this Agreement; and
(x) if 2.6.2 hereof, including without limitation, Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) pay the Cap Recovery Costs and interest thereon at the Default Rate. Notwithstanding anything to the contrary in this Agreement, the Note Agreement or any of the Loan Documents, (A) 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 Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender Debt in accordance with the Loan Documents, and (B) Lender’s agreement not to pursue personal liability of Borrower as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Debt shall be fully recourse to Borrower in the event that one or more of the following occurs (each, a “Springing Recourse Event”): (i) an Event of Default described in Section 8.1(d) hereof shall have occurred or (ii) a breach of the covenants set forth in Section 5.13 hereof, or (iii) the occurrence of any condition or event described in either Section 8.1(f) hereof or Section 8.1(g) hereof and, with respect to such condition or event described in Section 8.1(g) hereof, either Borrower, Sole Member, Guarantor or any Person owning an interest (directly or indirectly) in Borrower, Sole Member or Guarantor consents to, aids, solicits, supports, or otherwise cooperates or colludes to cause such condition or event or fails to contest such condition or event.
Appears in 2 contracts
Sources: Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or other judgment establishing personal liability shall be sought against BorrowerBorrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents and Profits, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower▇▇▇▇▇▇▇▇’s interest in the Collateral Property, in the Rents and Profits and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not ▇▇▇ sue for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender ▇▇▇▇▇▇ to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of any assignment of leases contained in the Security 156506983 Instrument; or (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; Property.
(b) Nothing contained herein shall in any manner or (g) constitute a waiver of way release, affect or impair the right of Lender to enforce the liability recover, and obligation of Borrower▇▇▇▇▇▇▇▇ shall be fully and personally liable and subject to legal action, by money judgment for any Losses incurred or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred suffered by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrowerany SPE Component Entity, Senior Mezzanine Borrower, Operating Company Principal or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the gross negligence or willful misconduct of Borrower, any SPE Component Entity, Principal or Guarantor in connection with the Loan or the Property;
(iii) material physical waste of the Property of Borrower, any SPE Component Entity, Principal, Guarantor or Affiliated Manager but only to the extent there exists sufficient cash flow from the Property to avoid such waste;
(iv) the removal or disposal of any portion of the Property after an Event of Default, unless any personal property that is removed or disposed of is replaced with personal property of the same utility and the same or greater value; but only to the extent that net cash flow available to Borrower from the operations of the Property is sufficient to prevent removal or disposal;
(v) the misappropriation, misapplication or conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrowerany SPE Component Entity, Senior Mezzanine Borrower, Operating Company Principal or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any RevenuesInsurance Proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of the Property, (DC) any Rents or security deposits (or any item of Revenue, from whatever source) and Profits following an Event of Default, or (ED) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents rents paid more than one (1) month in advance;
(ivvi) failure to pay Impositions, charges for labor or materials or other charges that can create liens on any act portion of actual intentional physical waste by Borrowerthe Property in accordance with the terms and provisions hereof (but only to the extent there exists sufficient cash flow from the Property to do so, Mortgage Borrowerprovided Borrower shall have provided Lender written notice of such insufficiency of cash flow in advance of the due date for such expenses), Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision and except in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances case of Impositions to the extent that amounts sufficient to pay such Impositions have been deposited with ▇▇▇▇▇▇ hereunder in the Tax and asbestos Insurance Reserve Account and any indemnification ▇▇▇▇▇▇ does not apply the same in payment thereof in violation of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage terms and conditions of the Loan Agreement or the Mortgages, as applicableDocuments);
(vii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein (but only to the extent there exists sufficient cash flow from the Property to do so, provided Borrower shall have provided Lender written notice of such insufficiency of cash flow in advance of the due date for such expenses), and except in the case of Insurance Premiums which have been deposited with Lender hereunder in the Tax and Insurance Reserve Account and Lender does not apply the same in payment thereof in violation of the terms and conditions of the Loan Documents); 156506983
(viii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiiix) in any tax on the event of:
(A) Borrowermaking and/or recording of the Security Instrument, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Note or any of the Properties, the Collateral, the Senior Mezzanine Collateral other Loan Documents or any portion thereoftransfer or similar taxes (whether due upon the making of the same or upon ▇▇▇▇▇▇’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other than at similar taxes;
(x) Borrower fails to comply with any Cash Management Provisions or fails to appoint a new property manager upon the request of Lender; ▇▇▇▇▇▇ or (E) Borrowerfails to comply with any limitations on instructing the property manager, Mortgage Borrowereach as required by and in accordance with, Senior Mezzanine Borroweras applicable, Operating Company or any Guarantor making an assignment for the benefit of creditors (terms and provisions of, this Agreement and the other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueLoan Documents;
(ixxi) WHLR-Nashville Commons, LLC, WHLR-▇▇▇▇▇▇▇▇ Center, LLC, or WHLR-Riverbridge Shopping Center, LLC’s prior ownership of the Prior Owned Property, including, but not limited to, any environmental liabilities;
(xii) if any representation, warranty, covenant or other provision contained in Section 3.19, Section 3.6, Section 4.13 or Section 4.21 is violated or breached;
(xiii) if Borrower, Senior Mezzanine Borrower Guarantor or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantoror Guarantor contests, to impedes, delays or opposes the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate exercise by Lender of any Borrower shall have any personal liabilityenforcement actions, directly remedies or indirectly, other rights it has under or in connection with this Agreement or the other Loan Documents. Neither ; provided that neither Borrower nor Guarantor shall be liable to the negative capital account extent of any applicable loss, damage, cost, expense, liability, claim or other obligation arising solely from a defense of Borrower, Guarantor or any Affiliate of Borrower or Guarantor raised in Borrower, or good faith; or
(xiv) ▇▇▇▇▇▇▇▇’s failure to satisfy the obligations set forth in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of BorrowerSection 4.12(e) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalhereof.
(bc) Notwithstanding anything to the contrary in this Agreement, the Note or 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Security Instrument or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and
(ii) the Debt shall be fully recourse to Borrower:
(A) in the event of: (1) Borrower, any SPE Component Entity, or any Person that Controls Borrower (“Principal”) filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (2) the filing of an involuntary petition against Borrower, any SPE Component Entity, or Principal under the 156506983 Bankruptcy Code or any other Federal or state bankruptcy or insolvency law in which Borrower, any SPE Component Entity, Principal or Guarantor colludes with, or otherwise assists such Person, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower, any SPE Component Entity, or Principal from any Person; (3) Borrower, any SPE Component Entity, or Principal filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (4) Borrower, any SPE Component Entity, or Principal consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, any SPE Component Entity, or Principal or any portion of the Property; or (5) Borrower, any SPE Component Entity, or Principal making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(B) if any representation, warranty, covenant or other provision contained in Section 3.19 or Section 4.21 is violated or breached and such violation or breach is cited by a court as a material factor in the substantive consolidation of Borrower with any Person; or
(C) if any representation, warranty, covenant or other provision contained in Section 7.1 hereof is violated or breached.
Appears in 2 contracts
Sources: Loan Agreement (Wheeler Real Estate Investment Trust, Inc.), Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section 10.1 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgage or to exercise its remedies against all of the CollateralProperty; or (gvii) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.obligation
Appears in 2 contracts
Sources: Loan Agreement (Hines Global REIT, Inc.), Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Security Instrument concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(iv) the removal or disposal of any portion of the Property after an Event of Default to the extent not replaced with items of comparable utility, quality and value;
(v) the misappropriation, misapplication or conversion by Borrower of (A) any Insurance Proceeds paid by reason of any Casualty, (B) any Awards received in connection with a Condemnation, (C) any Rents following an Event of Default, or (D) any Rents paid more than one (1) month in advance;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower failure to pay charges for labor or Operating Company fails to obtain Lender’s prior consent to materials or other charges that can create Liens on any voluntary intentional Transfer as required by this Agreement, portion of the Mortgage Loan Agreement or the Mortgages, as applicableProperty;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;; and
(viii) failure of Borrower to permit on site inspections of the Property, provide financial information, or to appoint a new property manager upon the request of Lender, each as required by, and in accordance with, the event of:terms and provisions of this Agreement or the Security Instrument.
(Aa) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an Borrower soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or Borrower from any Guarantor Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Personlaw; (Cc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person; (Dd) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Borrower or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.Property;
Appears in 2 contracts
Sources: Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc)
Exculpation. (a) Subject to Except as otherwise provided herein, in the qualifications belowPledge Agreement or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Note or the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under this Agreement, the Note, the Pledge Agreement, the other Loan Documents, and the Collateral, and any other collateral given to Lender created by this Agreement, the Note, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note and the other Loan DocumentsPledge Agreement, agrees that it shall not not, except as otherwise provided herein or in the Pledge Agreement, ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreement or the other Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge Agreement; (ciii) affect the validity or enforceability of any indemnity (including, without limitation, the Environmental Indemnity), guaranty (including, without limitation, the Guaranty), master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Pledge Agreement, or the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of impair the right of Lender to enforce Sections 4.1.9, 4.1.29, 5.1.9 and 5.2.8 hereof; or (vii) impair the liability and obligation right of Borrower, by money Lender to obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower if necessary to (A) preserve or enforce its rights and remedies against the Collateral or (B) obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under the terms of this Agreement or the Pledge Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual lossthe Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 9.4 to the contrary, damage, cost, expense, liability, claim or other obligation incurred by Borrower shall be personally liable to Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with for the following:
Losses it incurs due to: (i) fraud or intentional misrepresentation in connection with the execution and the delivery of this Agreement, the Note, the Pledge Agreement, the other Loan Documents or any Mortgage Loan Documents; (ii) Borrower’s or Mortgage Borrower’s misappropriation or intentional misapplication of Rents received by Borrower or Mortgage Borrower after the occurrence and during the continuance of an Event of Default; (iii) Borrower’s or Mortgage Borrower’s misappropriation or intentional misapplication of security deposits or Rents collected more than thirty (30) days in advance; (iv) Borrower’s or Mortgage Borrower’s misappropriation or intentional misapplication of Insurance Proceeds or Awards; (v) Borrower’s or Mortgage Borrower’s misappropriation or intentional misapplication of Net Liquidation After Debt Service or any distributions or other payments made in respect of any part of the Property or the Collateral; (vi) Borrower’s making a distribution to its equity owners after the occurrence and during the continuance of an Event of Default; (vii) Mortgage Borrower’s failure to pay Taxes, Other Charges (except to the extent that sums sufficient to pay such amounts have been deposited in escrow with Mortgage Lender pursuant to the terms of Section 7.2 of the Mortgage Loan Agreement, charges for labor or materials or other charges that can create Liens on the Properties (except to the extent that there is insufficient cash flow from the operation of the Property; (viii) Borrower’s failure to return or to reimburse Lender for all Personal Property taken from any Properties by or on behalf of Mortgage Borrower (other than Personal Property that is obsolete or removed or disposed in the ordinary course of business of owning and operating the Property) and not replaced with Personal Property of the same utility and of the same or greater value; (vii) any act of intentional waste or arson by Borrower, Mortgage Borrower, Senior Mezzanine BorrowerPrincipal, Operating Company or any Guarantor in connection Affiliate thereof or Guarantor; (viii) [intentionally deleted]; (ix) Borrower’s failure to comply with the execution provisions of Section 5.1.10 hereof (provided Borrower shall have an additional ten (10) day after written notice of such failure to deliver the required financial statements or reports pursuant to Section 5.1.10 hereof before recourse is sought); (x) Borrower’s failure to comply with the provisions of Sections 4.1.39 and delivery 5.1.19 of this Agreement; (xi) Borrower’s or Principal’s default under Section 4.1.36 hereof; or (xii) Operating Tenant’s or Principal’s (as defined in the Subordination Agreement) default under Section 11 of the Loan Documents and/or the Loan;Subordination Agreement.
(iic) Notwithstanding the misappropriationforegoing, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification agreement of Lender with respect thereto not to pursue recourse liability as set forth in either document;
Subsection (via) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
above SHALL BECOME NULL AND VOID and shall be of no further force and effect (vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiii) in the event of:
of Borrower’s default under Section5.2.10 hereof or Article 7 of the Security Instruments, (ii) if any Individual Property, the Collateral or any part thereof shall become an asset in (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; proceeding or (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law proceeding commenced by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine and Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable, fails to use its commercially reasonable efforts to obtain a dismissal of such proceedings.
(d) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower Nothing herein shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset a waiver of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 provision of the Bankruptcy Code to file a claim for the full amount of the Indebtedness indebtedness secured by the Pledge Agreement or to require that all collateral shall continue to secure all of the Indebtedness indebtedness owing to Lender in accordance with this Agreement, the Note, the Pledge Agreement and the other Loan Documents.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Meristar Hospitality Operating Partnership Lp), Mezzanine Loan Agreement (Meristar Hospitality Corp)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, Purchaser agrees that it shall does not ▇▇▇ forhave and will not have any claims or causes of action against any disclosed or undisclosed officer, seek or demand any deficiency judgment against Borrower in any such action or proceeding underdirector, or by reason ofemployee, or in connection withtrustee, the Noteshareholder, this Agreementpartner, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall notprincipal, however,
(a) constitute a waiverparent, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim subsidiary or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out affiliate of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating CompanySeller, including, without limitation, (A) any Revenuesmember, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholdermanager, officer, director, employee, trustee, beneficiaryshareholder, advisor, partner, member, principal, participant partner or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate principal of any Borrower shall have any personal liabilitysuch parent, directly subsidiary or indirectlyother affiliate (collectively, under “Seller’s Affiliates”), arising out of or in connection with this Agreement or the Loan Documents. Neither transactions contemplated hereby; provided, however, that the negative capital account of foregoing shall not limit any liability that any Seller’s Affiliate of Borrower in Borrowermay have, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital and the foregoing waiver shall not extend to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall claim that Purchaser may have any right to collect, enforce or proceed against any Seller’s Affiliate under applicable law, for or with respect to: (a) distributions actually received by any Seller’s Affiliate from Seller to the extent such negative capital account or obligation to restoredistributions rendered Seller insolvent, contribute or loan capital.
(b) Notwithstanding anything distributions, payments or other transfers actually received by any Seller’s Affiliate from Seller to the contrary extent constituting a preference or fraudulent conveyance, (c) fraud or fraudulent inducement on the part of Seller or any Seller’s Affiliate in connection with this Agreement, the Note Property or the transactions contemplated hereunder, (d) any contractual liability of such Seller’s Affiliate under any other agreement with or for the benefit of Purchaser to which such Seller’s Affiliate is a party, or (e) any liability any Seller’s Affiliate may have to Purchaser in tort or under any applicable statutory law. Subject to the foregoing proviso, ▇▇▇▇▇▇▇▇▇ agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the Loan Documentscovenants, Lender shall warranties or other agreements contained herein, and further agrees not be deemed to have waived sue or otherwise seek to enforce any right which Lender may have under Section 506(a), 506(b), 1111(b) personal obligation against any of Seller’s Affiliates with respect to any matters arising out of or any other in connection with this Agreement or the transactions contemplated hereby. Without limiting the generality of the foregoing provisions of this Section 36, but subject to the Bankruptcy Code to file a claim for proviso set forth in the full amount first sentence of this Section 36, Purchaser hereby unconditionally and irrevocably waives any and all claims and causes of action of any nature whatsoever it may now or hereafter have against Seller’s Affiliates, and hereby unconditionally and irrevocably releases and discharges Seller’s Affiliates from any and all liability whatsoever which may now or hereafter accrue in favor of Purchaser against Seller’s Affiliates, in connection with or arising out of this Agreement or the Indebtedness or to require that all collateral transactions contemplated hereby. The provisions of this Section 36 shall continue to secure all survive the termination of this Agreement and the Indebtedness owing to Lender in accordance with the Loan DocumentsClosing.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of any Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against such Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against a Borrower only to the extent of such Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not ▇▇▇ for, seek or demand any deficiency judgment against a Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower one or more Borrowers as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgage or to exercise its remedies against all of the CollateralProperty; or (gvii) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrowers, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) (collectively, "LENDER'S LOSSES") arising out of or in connection with the following:
following (iall such liability and obligation of Borrower for any or all of the following being referred to herein as "BORROWERS' RECOURSE LIABILITIES"): (a) fraud or intentional misrepresentation by any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with obtaining the execution and delivery Loan; (b) physical waste of the Loan Documents and/or Property or any portion thereof (other than acts committed by a third party non-affiliated property manager), or after an Event of Default the Loan;
(ii) the misappropriation, conversion removal or misapplication in contravention disposal of any portion of the Loan Documents Property (other than acts committed by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company a third party non-affiliated property manager); (c) any Proceeds paid by reason of any Insured Casualty or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards Award received in connection with a CondemnationCondemnation or other sums or payments attributable to the Property not applied in accordance with the provisions of the Loan Documents (other than acts committed by a third party non-affiliated property manager) (except to the extent that a Borrower did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums or payments); (Dd) all Rents of the Property received or collected by or on behalf of any Rents Borrower after an Event of Default and not applied to payment of Principal and interest due under the Note, and to the payment of actual and reasonable operating expenses of the Property, as they become due or security deposits payable (other than acts committed by a third party non-affiliated property manager) (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or any item similar judicial proceeding in which such Borrower is legally prevented from directing the disbursement of Revenue, from whatever sourcesuch sums); (e) misappropriation (including failure to turn over to Lender on demand following an Event of Default) of tenant security deposits and rents collected in advance, or of funds held by any Borrower for the benefit of another party (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
than acts committed by a third party non-affiliated property manager); (iiif) the misappropriationfailure to pay Taxes, conversion provided Borrowers shall not be liable (A) to the extent funds to pay such amounts are available in the Tax and Insurance Subaccount and Lender failed to pay same or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company has elected not to pay the same pursuant to Section 3.3 or any Guarantor of any security deposits or (B) Rents paid more than one are insufficient to yield sufficient funds to pay such amounts; (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(vg) the breach of any representation, warranty, covenant or indemnification provision in any Loan Document concerning Environmental Laws or Hazardous Substances, including Sections 4.21 and 5.8, and clauses (viii) through (xi) of Section 5.30; (h) the breach of the covenants set forth in Section 5.13 (other than a breach of any of the covenants described in clauses (x) and (xxi) (with respect to unsecured trade payables) set forth in the Environmental Indemnity Agreement concerning environmental lawsdefinition of "Special Purpose Bankruptcy Remote Entity" on Schedule 5, hazardous substances and asbestos and if the same occurs as a result of the economic performance of the Property); (i) any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails any Guarantor of such Borrower or any of their direct or indirect Affiliates taking any action or making any omission intended or reasonably likely to obtain Lender’s prior consent hinder, delay, impair or prevent Lender in or from enforcing any and all of its rights and remedies under or pursuant to any voluntary intentional Transfer as required by this Agreementthe Loan Documents or at law or in equity (unless the same is brought in good faith and is determined in favor of such Borrower or Guarantor pursuant to a final, non-appealable judgment of a court of competent jurisdiction); (j) the Mortgage Loan termination of the Management Agreement or the Mortgagesremoval of Behringer Harvard TIC Management Services, L.P. as applicable;
property manager thereunder without Lender's consent (viiprovided that only the Borrower(s) that voted in favor of such termination or removal shall be liable for such losses); or (k) subject to the next succeeding sentence, the failure by any security depositsBorrower to consent to a modification of the terms of the Loan after a minimum of other Borrowers representing a collective 66% tenancy in common interest in the Property (as such percentage shall be automatically increased by each percentage point by which the Behringer Minimum Tenant-in-Common Interest exceeds 5%) have approved the same. For purposes of the foregoing clause (k), advance deposits or Lender's Losses with respect to the occurrence of any event giving rise to such matter (A) shall be deemed to be equal to any unpaid portion of the Debt that remains outstanding after Lender completes its realization with respect to the Property (and all of its other deposits collected collateral for the Loan pursuant to any of the Loan Documents) and applies the proceeds of such realization to the Debt and (B) Lender's Losses with respect to any applicable Borrower shall be limited to an amount equal to the product of (1) the original principal amount of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of Loan and (2) the Properties or action applicable Borrower's respective undivided tenant in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) common interest in the event of:
Property (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status expressed as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Companypercentage), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note Agreement or any of the Loan Documents, (A) 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 Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender Debt in accordance with the Loan Documents., and (B) Lender's agreement not to pursue personal liability of Borrowers as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Debt shall be fully recourse to the applicable Borrower or Borrowers in an amount equal to the greater of (x) Lender's Losses arising out of or in connection with the following matters or (y) an amount equal to the product of (1) the unpaid balance of the Debt and (2) the applicable Borrower's respective undivided tenant in common interest in the Property (expressed as a percentage), in the event that one or more of the following occurs (each, a "SPRINGING RECOURSE EVENT"): (i) an Event of Default described in Section 8.1(d) shall have occurred, (ii) the occurrence of any condition or event described in either Section 8.1(f) (with respect to Borrowers only) or Section 8.1(g) (with respect to Borrowers only) (each, an "INSOLVENCY ACTION") and, with respect to such Insolvency Action described in Section 8.1(g), either any Borrower, Guarantor or any Person owning an interest (directly or indirectly) in any Borrower, or Guarantor consents to, aids, solicits, supports, or otherwise cooperates or colludes to cause such Insolvency Action or fails to contest such Insolvency Action, except in the event that any such party has a fiduciary or legal duty to take such action, (iii) any involuntary bankruptcy proceeding is brought by any Borrower or its Guarantor or any of such Borrower's or its Guarantor's Affiliates against any other Borrower; (iv) if subsequent to the commencement of any voluntary bankruptcy proceeding with respect to any Borrower, any involuntary bankruptcy proceeding is brought by Lender against one or more Borrowers and any Borrower or such Borrower's Guarantor files any motion contesting the same; or
Appears in 2 contracts
Sources: Loan Agreement (Behringer Harvard Reit I Inc), Loan Agreement (Behringer Harvard Reit I Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrower or Sole Member, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section 3.1 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (c) affect the validity or enforceability of the Guaranty or the Environmental Indemnity or any Guaranty guaranty or indemnity made in connection with the Loan therein or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; or (f) constitute a prohibition against Lender to seek seeking a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence commencing any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; Property.
(b) Nothing contained herein shall in any manner or (g) constitute a waiver of way release, affect or impair the right of Lender to enforce the liability recover, and obligation of BorrowerBorrower shall be fully and personally liable and subject to legal action, by money judgment for any losses, damages (including, without limitation, punitive or otherwiseexemplary damages), to the extent costs, expenses, liabilities (including, without limitation, strict liability), claims, obligations, settlement payments, penalties, fines, assessments, citations, litigation, demands, defenses, judgments, suits, proceedings or other expenses of any actual loss, damage, cost, expense, liability, claim kind whatsoever incurred or other obligation incurred suffered by Lender (including reasonable attorneys’ fees and costs reasonably incurredexpenses and court costs) arising out of or in connection with the following:
(i) fraud or intentional knowing misrepresentation by Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrower, Operating Company or any Guarantor Key Principal in connection with the execution and delivery of Loan or the Loan Documents and/or the LoanProperty;
(ii) gross negligence or willful misconduct of Borrower, Sole Member, Guarantor or Key Principal in connection with the misappropriationLoan or the Property;
(iii) breach of any material representation, conversion warranty, covenant or misapplication indemnification provision concerning Environmental Statutes or Hazardous Substances in contravention the Environmental Indemnity, the Loan Agreement or the Security Instrument;
(iv) material physical waste of the Property;
(v) removal or disposal of any material portion of the Property after an Event of Default;
(vi) breach of any Legal Requirement (including RICO) mandating the forfeiture by Borrower of the Property, or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower or any Restricted Party in connection therewith;
(vii) any intentional misrepresentation, misleading or incorrect certification or breach of any material representation, warranty or certification contained in this Agreement or any other Loan Document or in any document executed in connection therewith, pursuant to any of the Loan Documents or otherwise to induce Lender to make the Loan, or any advance thereof, or to release monies from any account held by Lender (including any reserve or escrow) or to take other action with respect to the Collateral;
(viii) misapplication, misappropriation or conversion by Borrower, Mortgage BorrowerSole Member, Senior Mezzanine Borrower, Operating Company Guarantor or any Guarantor Key Principal of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any RevenuesInsurance Proceeds which are not applied by Borrower or any Affiliated Manager in accordance with the terms of this Agreement, (B) any Net Liquidation Proceeds or Insurance ProceedsAwards which are not applied by Borrower in accordance with the terms of this Agreement, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (ED) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance, or (E) any other monetary collateral for the Loan;
(ivix) any act failure to pay (or cause to be paid) charges for Taxes or Other Charges before the same become delinquent unless (A) such Taxes or Other Charges are the subject of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company a bona fide dispute in which Borrower or a Tenant is contesting the amount or validity thereof in accordance with the terms of this Agreement (or any Guarantorapplicable Lease, as applicable), or (B) Borrower is depositing or has deposited required funds into the Tax and Insurance Escrow Account and Lender fails to apply such Tax and Insurance Escrow Funds to Taxes and Other Charges to the extent there are sufficient funds in the Tax and Insurance Escrow Account, or (C) such failure is due to the failure of the Property to generate sufficient Rents to pay such amounts but only so long as Borrower has not applied Rents in violation of the terms hereof or the other Loan Documents, or (D) such failure is due to the failure of Lender after the occurrence and during the continuance of an Event of Default to make Rents available to pay such amounts;
(vx) failure to pay charges for labor or materials or other charges or judgments that can create Liens on any portion of the breach of any representationProperty, warrantyprovided, covenant or indemnification provision in that (i) if such Lien is fully bonded to the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification satisfaction of Lender (which bond shall have no resort to the Property for payment) and such Lien is discharged of record, or (ii) for so long as such Lien is being contested in good faith and in accordance with respect thereto in either documentthe terms of this Agreement, Borrower shall not have any liability to Lender for such Lien under this Section 3.1(b)(x);
(vixi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails failure to obtain Lender’s prior consent deliver to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) Lender any security deposits, advance deposits or any other deposits collected by or on behalf of Borrower with respect to any of the Properties which are not delivered to Mortgage Lender upon Property after a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiixii) failure by Borrower to obtain and maintain, from time to time, the fully paid for insurance policies in accordance with the terms of this Agreement unless Borrower is depositing or has deposited required funds into the Tax and Insurance Escrow Account and Lender fails to apply such Tax and Insurance Escrow Funds to Insurance Premiums to the extent there are sufficient funds in the event of:Tax and Insurance Escrow Account;
(Axiii) any of Borrower, Mortgage BorrowerSole Member, Senior Mezzanine Borrower, Operating Company Key Principal or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any Affiliate of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admittingforegoing, in writing connection with any enforcement action or in any legal proceeding, its insolvency exercise or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate assertion of any Borrower shall have any personal liability, directly right or indirectly, remedy by or on behalf of Lender under or in connection with the Loan Documents. Neither Guaranty, the negative capital account of any Affiliate of Borrower in BorrowerNote, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (Security Instrument or any other Affiliate Loan Document, seeks a defense, judicial intervention or injunctive or other equitable relief of Borrower) any kind, or asserts in a pleading filed in connection with a duly exercised and neither prosecuted judicial proceeding any defense against Lender nor its successors or assigns shall have any right in connection with any security for the Loan, which a court determines is frivolous or in bad faith;
(xiv) Borrower’s indemnifications of Lender set forth in Section 9.2 of this Agreement;
(xv) the failure of Borrower to collectobtain and maintain the fully paid for Policies in accordance with Section 5.1.2 hereof, enforce except to the extent that Borrower’s failure to obtain and maintain the fully paid for Policies is due to (A) the failure of the Property to generate sufficient Rents to pay such amounts but only so long as Borrower has not applied Rents in violation of the terms hereof or proceed against any the other Loan Documents or (B) the failure of Lender after the occurrence and during the continuance of an Event of Default to make Rents available to pay such negative capital account or obligation amounts; or
(xvi) the failure of Borrower to restorecomply with its obligations and liabilities arising relating to Section 4.4 under that certain Agreement of Purchase and Sale and Contribution Agreement, contribute or loan capitaldated as of October 17, 2012, between Inland Real Estate Acquisition, Inc., Centennial Centre, L.L.C., Centennial Holdings, L.L.C., Eastern — Beltway, Ltd., Retail Development Partners, LLC, Virgin Territory LLC, and ▇▇▇▇▇ ▇▇▇▇▇ Corner, LLC, as amended by First Amendment to Agreement of Purchase and Sale and Contribution Agreement, dated as of December 20, 2012, and as partially assigned to and assumed by Borrower pursuant to Assignment and Assumption of Agreement, of even date herewith, by and between Inland Real Estate Acquisition, Inc. and Borrower, including, without limitation, obligations to make Earnout Payments as and when required under the terms thereof.
(bc) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Indebtedness Debt secured by the Security Instrument or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender Obligations in accordance with the Loan Documents., and (B) Borrower shall be personally liable for the payment of the Debt in the event of (each of the following, hereafter a “Springing Recourse Event”):
Appears in 2 contracts
Sources: Loan Agreement (Inland Diversified Real Estate Trust, Inc.), Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the NoteNotes, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the NoteNotes, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, the Reserve Funds, the Rents, Net Proceeds and in any other collateral given to Lender, and Lender, by accepting the NoteNotes, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the NoteNotes, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan (including, without limitation, the Recourse Guarantee and the ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ U.S. Bank Tower Lease Guarantee) or any of the rights and remedies of Lender thereunderthereunder or the rights of Lender under any other certificate or agreement delivered by Guarantor; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with and Borrower shall be personally liable for the following:
(i) fraud or intentional misrepresentation by BorrowerBorrower Guarantor, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor their affiliates in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower Guarantor or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateraltheir affiliates;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentdocument to the extent not otherwise covered by an environmental insurance policy obtained by Borrower and approved by Lender;
(iv) the removal or disposal by Borrower, Guarantor or their affiliates of any portion of the Property following the occurrence and during the continuance of an Event of Default;
(v) the misapplication or misappropriation by Borrower, Guarantor or their affiliates of (A) any insurance proceeds paid by reason of any Casualty to the Property, (B) any Awards received in connection with the Condemnation of all or a portion of the Property, (C) any Rents following the occurrence and during the continuance of an Event of Default and not applied to the Debt, or (D) any Rents paid more than one (1) month in advance to the extent such Rents or any other payments in respect of the Leases and other income of the Property or any other collateral are not applied to the costs of maintenance and operation of the Property and to the payment of taxes, lien claims, insurance premiums, debt service and other amounts due under the Loan Documents;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower failure to pay (or Operating Company fails otherwise bond) charges for labor or materials or other charges for work performed at the Property prior to obtain Lender’s prior consent foreclosure and transfer of title to the Property and resulting in Liens on any voluntary intentional Transfer as required by this Agreement, portion of the Mortgage Loan Agreement Property (excluding such unpaid work performed for Lender or the Mortgages, as applicableany receiver);
(vii) any security deposits, advance deposits deposits, Tenant Letter of Credit or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing breach by Borrower of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents its indemnification obligations set forth in Section 9.2 of this Agreement or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing referred to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any Section 7.10 of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueMortgage;
(ix) Borrower’s failure to maintain insurance as required by this Agreement or to pay any taxes or assessments affecting the Property but only (A) to the extent that the Property generates cash flow sufficient to permit (and that is available to) Borrower to pay the same when due and (B) if Borrowersuch failure does not result from the failure of Lender, Senior Mezzanine in violation of this Agreement, to release to Borrower Insurance Funds or Tax Funds, respectively, for the payment of applicable insurance premiums or taxes or assessments;
(x) intentional, physical waste, damage or destruction of any portion of the Property caused by the acts or omissions of Borrower or Mortgage Guarantor or their respective affiliates, agents, employees or contractors;
(xi) commission of a criminal act by Borrower fails Guarantor or their affiliates;
(xii) Borrower’s failure to appoint a new property manager upon the request of Lender after an Event of Default as required by, and in accordance with the terms and provisions of, this Agreement and the Mortgage;
(xiii) Borrower’s failure to provide financial information in accordance with, and required by, this Agreement (which damages will be limited to Lender’s cost for accountants and other consultants to prepare such financial information);
(xiv) Borrower’s failure to maintain its status as a Special Purpose Entity single purpose entity as required by, and in accordance with, the terms and provisions of, this Agreement and the Mortgage, excluding Borrower’s obligations under Section 3.1.24(f) or breaches (j);
(xv) any material representation defenses, offset rights or warranty set forth counterclaims that KPMG LLP, a Delaware limited liability partnership or its successors (“KPMG”) assert at any time subsequent to the date Lender takes possession of the Property or a receiver is appointed therefor, or the date Lender or another purchaser becomes the owner of the Property by reason of a foreclosure, deed in Section 4.1.30 lieu of this Agreement; and
foreclosure or otherwise (the “Turnover Date”)) arising from the following: (x) if Borrowerliability for certain real estate taxes pursuant to Section 10.2 of that certain KPMG Lease arising from acts or events prior to the Turnover Date, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect the process of reconciliation of Additional Rent (as such term is defined in the KPMG Lease) for Operating Expenses (as such term is defined in the KPMG Lease) and Real Property Taxes (as such term is defined in the KPMG Lease) for the years 2002 through and including 2007 or any other period prior to Operating Company, Permitted Indebtedness the Turnover Date or (Operating Company), z) liability for any “Additional Tenant Improvement Allowance” (as applicablesuch term is defined in the KPMG Lease) or voluntary Lien (other than Permitted Encumbrances) encumbering any pursuant to Section 5.4 of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate KPMG Lease; or
(xvi) failure of Borrower (other than Guarantor, A) to cause the extent provided under completion of the Guaranty▇▇▇▇▇▇ Landlord Work in accordance with Section 6.7 or (B) nor to fund to Lender any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed amounts required to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither deposited with Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) in accordance with Section 6.7.2. Notwithstanding anything to the contrary in this Agreement, the Note Notes or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) [reserved]; (ii) Borrower fails to obtain Lender’s prior consent to any subordinate financing or other voluntary Lien encumbering the Property, to the extent such consent is required by the terms of the Loan Documents; (iii) Borrower fails to obtain Lender’s prior consent to any transfer prohibited by Section 8.1 hereof, as required by the Mortgage or this Agreement, to the extent such consent is required by the Loan Documents; (iv) Borrower or Guarantor files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (v) an Affiliate, officer, director, or representative which controls, directly or indirectly, Borrower or Guarantor files, or joins in the filing of, an involuntary petition against Borrower or Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower or Guarantor from any Person; (vi) Borrower or Guarantor files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (vii) any Affiliate, officer, director, or representative which controls Borrower or Guarantor consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Property; or (vii) Borrower or Guarantor makes an assignment for the benefit of creditors, or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due.
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations Obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Gross Revenues or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Gross Revenues and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇s▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 10.1 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) impair the enforcement of the Environmental Indemnity; (g) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (gh) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
(i) fraud fraud, willful misconduct, misrepresentation or intentional misrepresentation failure to disclose a material fact by or on behalf of Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrowerany Affiliate of Borrower or Guarantor, Operating Company or any Guarantor of their respective agents or representatives in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in any other Loan Document concerning environmental laws, hazardous substances and and/or asbestos and any indemnification of Lender with respect thereto in either document;
(iii) wrongful removal or destruction of any portion of the Property or damage to the Property caused by willful misconduct or gross negligence;
(iv) any physical waste of the Property;
(v) the forfeiture by Borrower of the Property, or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower or Guarantor or any of their respective agents or representatives in connection therewith, including by reason of any claim under the Racketeer Influenced and Corrupt Organizations Act (RICO);
(vi) if Borrowerthe misappropriation or conversion by or on behalf of Borrower of (A) any Insurance Proceeds paid by reason of any loss, Mortgage Borrowerdamage or destruction to the Property, Senior Mezzanine Borrower or Operating Company fails (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, or (C) any Gross Revenues (including Rents, Insurance Proceeds, security deposits, advance deposits or any other deposits and Lease Sweep Lease Termination Payments and Lease Termination Payments) or (D) any other funds due under the Loan Documents, including, in connection with any of the foregoing, by reason of failure to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, comply with Section 6.1 hereof or breach of the Mortgage Loan Clearing Account Agreement or the MortgagesCash Management Agreement or (E) following the occurrence of the first Trigger Period, as applicableBorrower’s failure to establish a Clearing Account pursuant to a Clearing Account Agreement as, when and to the extent required by Section 6.1 hereof;
(vii) subject to Borrower’s right to contest set forth in Section 4.3 hereof, failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Property;
(viii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon in accordance with the provisions of the Loan Documents;
(ix) the failure to pay Taxes or transfer taxes;
(x) failure to obtain and maintain the fully paid for Policies in accordance with Section 5.1.1 hereof, including, without limitation, any failure of the Borrower to obtain and maintain the Required Excess Flood Coverage Policy pursuant to and in accordance with Section 5.1.1(j) hereof;
(xi) if there is (A) any default by Borrower, any Borrower Affiliated Tenant (including, without limitation, PUREgraphite Tenant), and/or their respective successors and/or assigns under the PILOT Documents, (B) any surrender, termination, cancellation, modification, change, supplement, alteration or amendment of any PILOT Document, including, without limitation, in each case, any increase in Real Estate Taxes as a foreclosure result of any of the Properties or action in lieu thereofforegoing, except to the extent and/or (C) any such security deposits were applied in accordance with the terms and conditions breach of any of the Leases prior representation, warranty and/or covenant set forth in Sections 3.1.34 and/or 4.15 hereof, in each case, with respect to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofany PILOT Document;
(viiixii) the failure of Manager (if any) to comply with the transition obligations under the applicable Assignment of Management Agreement;
(xiii) Borrower’s indemnification of Lender set forth in Section 9.2 hereof;
(xiv) any cost or expense incurred by Lender in connection with the event of:enforcement of its rights and remedies under this Section 10.1, under the Guaranty and/or under the Environmental Indemnity;
(xv) if (A) Borrowerany Borrower Affiliated Lease Default Event occurs; (B) Borrower Affiliated Lease Guarantor shall be in monetary or material non-monetary default pursuant to the applicable Borrower Affiliated Lease Guaranty following any applicable cure period expressly set forth in such Borrower Affiliated Lease Guaranty, Mortgage Borrowerbut without taking into account any requirement to deliver any applicable notice of such default; and/or (C) there is any failure by Borrower to enforce the terms, Senior Mezzanine Borrower, Operating Company covenants and conditions contained in any Borrower Affiliated Lease or any Guarantor filing Borrower Affiliated Lease Guaranty upon the part of the Borrower Affiliated Tenant or Borrower Affiliated Lease Guarantor, as applicable, thereunder to be observed or performed;
(xvi) if any Monthly OpEx Certification shall be false or misleading in any material respect;
(i) any Borrower Affiliated Tenant files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(ii) any Borrower Affiliated Tenant is substantively consolidated with any other Person (including, without limitation, any substantive consolidation or other similar doctrine under the laws of any foreign jurisdiction, including, without limitation, any reconstruction, amalgamation, pooling and/or piercing the corporate veil under Australian law); unless such consolidation was involuntary and not consented to by Borrower, Guarantor, any Borrower Affiliated Lease Guarantor, and/or such Borrower Affiliated Tenant and is discharged, stayed or dismissed within thirty (B30) days following the occurrence of such consolidation;
(iii) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower Affiliated Tenant under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrower, Operating Company Borrower Affiliated Tenant or any Borrower Affiliated Lease Guarantor or any of their respective Affiliates, agents or employees colludes with or otherwise intentionally assists such other Person, or and/or Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrower, Operating Company Borrower Affiliated Tenant or any Borrower Affiliated Lease Guarantor soliciting solicits or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from Borrower Affiliated Tenant by any Person; ;
(Civ) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing Borrower Affiliated Tenant files an answer consenting to to, or otherwise acquiescing in in, or joining in in, any involuntary petition filed against it by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; ;
(Dv) Borrower, Mortgage Guarantor, any Borrower Affiliated Tenant or any Borrower Affiliated Lease Guarantor or any Affiliate, officer, director or representative which controls Borrower, Senior Mezzanine BorrowerGuarantor, Operating Company Borrower Affiliated Tenant or any Borrower Affiliated Lease Guarantor consenting to consents to, or acquiescing in acquiesces in, or joining in joins in, an application for the appointment of a custodian, receiver, trustee, trustee or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Borrower Affiliated Tenant or any portion thereof, other than at of the request of Lender; or Property;
(Evi) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making Borrower Affiliated Tenant makes an assignment for the benefit of creditors (other than Lender), or admittingadmits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ixvii) if Borrowerany failure of the Property to have access to, Senior Mezzanine Borrower or Mortgage Borrower fails and/or to maintain its status as a Special Purpose Entity or breaches be served by, the Affected Underground Utilities, any material representation or warranty curtailment and/or interruption of the Affected Underground Utilities, and/or any breach of the covenants set forth in Section 4.1.30 of this Agreement4.38 hereto; andand/or
(xviii) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any failure of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything Required Excess Flood Coverage Policy to be in full force and effect prior to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, date on which such Required Excess Flood Coverage Policy is obtained pursuant to the extent provided under the Guarantyand in accordance with Section 5.1.1(j) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documentshereof. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note Agreement or any of the other Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Obligations or to require that all collateral shall continue to secure all of the Indebtedness Obligations owing to Lender in accordance with the Loan Documents., and (B) the Obligations shall be fully recourse to Borrower in the event that any of the following occur (each, a “Springing Recourse Event”):
(ix) a breach of the covenants set forth in Section 4.4 hereof;
(x) Borrower fails to obtain Lender’s prior consent to any subordinate financing secured by the Property or other voluntary Lien encumbering the Property;
(xi) Borrower fails to obtain Lender’s prior consent to any Transfer of the Property or any interest therein or any Transfer of any direct or indirect interest in Borrower, in either case as required by the Mortgage or this Agreement other than a Permitted Transfer;
(xii) any termination, rejection, cancellation, change, amendment, supplementation or other modification to or of the Ground Lease or any surrender of the leasehold estate created by the Ground Lease unless, in each case, such action was consented to by Lender in writing;
(xiii) Borrower files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(xiv) Borrower is substantively consolidated with any other Person (including, without limitation, any substantive consolidation or other similar doctrine under the laws of any foreign jurisdiction, including, without limitation, any reconstruction, amalgamation, pooling and/or piercing the corporate veil under Australian law); unless such consolidation was involuntary and not consented to by Borrower or Guarantor and is discharged, stayed or dismissed within thirty (30) days following the occurrence of such consolidation;
(xv) the filing of an involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower and/or Guarantor colludes with or otherwise intentionally assists such Person, and/or Borrower and/or Guarantor solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower by any Person;
(xvi) Borrower files an answer consenting to, or otherwise acquiescing in, or joining in, any involuntary petition filed against it by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(xvii) Borrower, Guarantor or any Affiliate, officer, director or representative which controls Borrower or Guarantor consents to, or acquiesces in, or joins in, an application for the appointment of a custodian, receiver, trustee or examiner for Borrower or any portion of the Property;
(xviii) Borrower makes an assignment for the benefit of creditors or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(xix) if Guarantor (or any Person comprising Guarantor), Borrower or any Affiliate of any of the foregoing, in connection with any enforcement action or exercise or assertion of any right or remedy by or on behalf of Lender under or in connection with the Guaranty, the Note, the Mortgage or any other Loan Document, seeks a defense, judicial intervention or injunctive or other equitable relief of any kind, or asserts in a pleading filed in connection with a judicial proceeding any defense against Lender or any right in connection with any security for the Loan;
(xx) (A) Borrower voluntarily avails itself of the benefits of any Emergency Law or otherwise voluntarily exercises any right or option under any Emergency Law and (B) such Emergency Law either (X) permits (I) Borrower to defer payment of, or otherwise elect not to pay, any amounts as and when due under the Loan Documents or (II) Borrower to delay performance of, or otherwise elect not to perform, any non-monetary obligation of Borrower as and when required under the Loan Documents or (Y) prevents Lender, or requires Lender to forbear, from exercising (at such time or another time in the future) any one or more rights or remedies that, in the absence of such Emergency Law, could otherwise be available to Lender under the Loan Documents or applicable Legal Requirements;
(xxi) Borrower fails to comply promptly (and in any event within any applicable timeframe provided under the relevant Emergency Law) with any request made by Lender pursuant to an Emergency Law for Borrower to take any action that, in Lender’s reasonable judgment, is necessary or reasonably necessary in order to permit Lender to exercise (at such time or another time in the future) any one or more rights or remedies that, in the absence of such Emergency Law, could otherwise be available to Lender under the Loan Documents or applicable Legal Requirements;
(xxii) any termination, rejection, cancellation, change, amendment, modification, release, surrender, supplementation or other modification to or of any Borrower Affiliated Lease or any Borrower Affiliated Lease Guaranty, any assignment or sublease by any Borrower Affiliated Tenant of its applicable Borrower Affiliated Lease, and/or any assignment by any Borrower Affiliated Lease Guarantor of its applicable Borrower Affiliated Lease Guaranty, in each case, unless the same was consented to by Lender in writing; or
(xxiii) there is any failure by any Borrower Affiliated Tenant to promptly vacate the Property if requested by Lender following a Borrower Affiliated Lease Default Event and/or Event of Default. In addition, Borrower hereby guarantees and shall be fully personally liable for (without the benefit of any exculpation provision contained herein and/or in any other Loan Documents) (I) the payment in full of any and all amounts payable pursuant to Section 6(e) of the PILOT Agreement (all such liability and obligation of Borrower, the “PILOT Clawback Liabilities”), including, without limitation, any amounts payable thereunder on or following the date on which Lender, its designee or nominee, or any purchaser at a foreclosure sale, acquire
Appears in 2 contracts
Sources: Loan Agreement (NOVONIX LTD), Loan Agreement (NOVONIX LTD)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower (or any of Borrower’s members, managers partners shareholders, or Affiliates, whether direct or indirect, collectively, the “Borrower Parties”) to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower or the Borrower Parties only to the extent of Borrower’s or the Borrower Parties’ interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower or the Borrower Parties in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including including, without limitation, attorneys’ fees and costs reasonably incurred) ), arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery Loan, including by reason of the Loan Documents and/or the Loanany claim under RICO;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine BorrowerGuarantor, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (Principal or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralRestricted Party;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and or asbestos and any indemnification of Lender with respect thereto in either documentany Loan Document;
(iv) wrongful removal or destruction by Borrower or any Affiliate of Borrower of any portion of the Property after the occurrence of an Event of Default or any intentional physical waste of the Property by Borrower of any Affiliate thereof, provided, however, that such physical waste shall exclude wear and tear to the Property that occurs in the ordinary course of business of the Property;
(v) any Legal Requirement (including RICO) mandating the forfeiture by Borrower of the Property, or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower or any Restricted Party in connection therewith;
(vi) if Borrowerany misrepresentation, Mortgage Borrower, Senior Mezzanine miscertification or breach of warranty by Borrower or Operating Company fails to obtain Lender’s prior consent Guarantor with respect to any voluntary intentional Transfer as required by representation, warranty or certification contained in this Agreement, the Mortgage Loan Agreement or any other Loan Document or in any document executed in connection therewith, pursuant to any of the MortgagesLoan Documents or otherwise to induce Lender to make the Loan, or any advance thereof, or to release monies from any account held by Lender (including any reserve or escrow) or to take other action with respect to the Collateral (as applicabledefined in the Mortgage);
(vii) the misappropriation or conversion by Borrower or any of its Affiliates of (A) any Insurance Proceeds paid by reason of any Casualty, (B) any Awards received in connection with a Condemnation, (C) any Rents following an Event of Default, or (D) any Rents paid more than one (1) month in advance; provided such amounts are not applied to the payment of the Loan or the Operating Expenses of the Property;
(viii) failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Property that are superior to the Lien of the Mortgage, unless such charges are being contested in accordance herewith;
(ix) any security deposits, advance deposits or any other deposits collected by Borrower or any Affiliate thereof with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiix) if Borrower fails to permit on-site inspections of the Property, fails to provide financial information specifically required by this Agreement or fails to appoint a new property manager upon the request of Lender, each as required by, and in accordance with, the event of:terms and provisions of this Agreement or the Mortgage; or
(Axi) Borrowerif the Operating Partnership shall default under the Vacant Space Master Lease beyond any applicable notice and/or cure period contained therein, Mortgage Borrowerif the Vacant Space Master Lease shall have been amended or modified (except as specified in Section 3.1.21 hereof) without Lender’s prior written consent, Senior Mezzanine Borroweror if the Vacant Space Master Lease shall have been terminated, cancelled or surrendered without Lender’s prior written consent, (except as specified in Section 3.1.21 hereof), or if the Operating Company or any Guarantor Partnership is the subject of a Bankruptcy Action, other than an involuntary Bankruptcy Action which is dismissed within ninety (90) days.
(a) Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person; (Dc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Borrower or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.Property; or
Appears in 2 contracts
Sources: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Exculpation. (a) Subject to the qualifications below, (i) Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against any of the members of Borrower or any direct or indirect partner, shareholder, member, manager, owner, officer, director, trustee or employee in or of Borrower (collectively, the "Exculpated Parties") or Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, (ii) except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ sue for, seek or demand any deficiency judgment against Borrower or any Exculpated Parties in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents and (iii) none of the Exculpated Parties shall have any personal liability in any respect for the Loan or the obligations of Borrower contained in the Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan (including, without limitation, the Guaranty) or any of the rights and remedies of Lender thereunder, or be taken to prevent recourse against any guarantor (including, without limitation, Metropolitan) under any guaranty made in connection with the Loan (including, without limitation, the Guaranty); (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with any of the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(iv) the removal or disposal of any portion of the Property after an Event of Default without replacing the same with an item or items of comparable value;
(v) the misapplication or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, or (C) any Rents following an Event of Default;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower failure to pay charges for labor or Operating Company fails to obtain Lender’s prior consent to materials or other charges that can create liens on any voluntary intentional Transfer as required by this Agreement, portion of the Mortgage Loan Agreement or the Mortgages, as applicableProperty;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) Borrower's indemnification of Lender set forth in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueSection 9.2 hereof;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails failure to maintain its Borrower's status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreementsingle purpose entity; and
(x) failure to permit on-site inspections of the Property, failure to provide financial information or failure to appoint a new Manager in accordance with the terms of this Agreement upon the request of Lender after an Event of Default, each as required by, and in accordance with, the terms and provisions of, this Agreement and the Mortgage, if Borrower, Mortgage Borrower, Senior Mezzanine such condition shall continue for five (5) Business Days after notice thereof.
(i) Borrower or Operating Company fails to obtain Lender’s 's prior written consent to any subordinate financing or other voluntary Indebtedness lien encumbering the Property; or
(other than (xii) with respect Borrower fails to Mortgage Borrowerobtain Lender's prior written consent to any assignment, Permitted Indebtedness and (y) with respect to Operating Companytransfer, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any conveyance of the Properties, Senior Mezzanine Collateral Property or Collateral any interest therein as required by the Mortgage or this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Loan Agreement (Reckson Associates Realty Corp), Loan Agreement (Reckson Operating Partnership Lp)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against BorrowerBorrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, Collateral (or any portion thereof) or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not sue ▇▇▇ for▇, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c3) affect the validity or enforceability of any indemnity, guaranty or any similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (d4) impair the right rights of Lender to (A) obtain the appointment of a receiverreceiver and/or (B) enforce its security interest in the Accounts as provided in Articles 8 and 9 hereof; (e5) intentionally omittedimpair the enforcement of the Pledge Agreement; (f6) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralCollateral (or any portion thereof); or (g7) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation reasonable out-of-pocket Loss incurred by Lender (including out-of-pocket attorneys’ fees and costs reasonably incurredincurred but in all events excluding consequential, punitive and special damages (except to the extent Lender is actually liable for such damages)) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower Party in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of any Borrower Party;
(iii) material physical waste to any Individual Property arising from the Loan Documents intentional acts or omissions of any Borrower Party (it being acknowledged that omissions to perform acts for which sufficient cash flow is not available from the Properties shall not be deemed an intentional omission for purposes of this clause (iii));
(iv) the removal or disposal by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Borrower Party or any Guarantor of its respective Affiliates of any funds portion of Borrower, Senior Mezzanine Borrower, Mortgage any Individual Property after an Event of Default unless such portion of any Individual Property so removed or so disposed of is replaced with property of equal utility and value or such removal or disposal was otherwise permitted pursuant to the terms and conditions hereof;
(v) the misapplication or conversion by any Borrower or Operating Company, including, without limitation, Party of (A) any Revenuesinsurance proceeds paid by reason of any loss, damage or destruction to any Individual Property (or any portion thereof), (B) any Net Liquidation Proceeds Awards or Insurance Proceedsother amounts received in connection with the Condemnation of all or a portion of any Individual Property, (C) any Awards received in connection with a CondemnationRents following an Event of Default, (D) any Rents paid more than one month in advance and/or (E) any Net Liquidation Proceeds After Debt Service;
(vi) failure to pay Taxes, charges for labor or security deposits materials or other charges that can create liens on any portion of any Individual Property in accordance with the terms and provisions hereof; provided, however, Borrower shall have no liability under this subsection (vi) if (A) such Taxes, charges for labor or materials or other charges that can create liens are being contested in accordance with the terms and conditions hereof or (B) sufficient cash flow is not available from the Properties to pay such amounts; provided, that, in no instance shall Borrower be released from any item liability pursuant to this clause (vi) to the extent (1) such insufficiency of Revenue, cash flow arises from whatever sourcethe intentional misappropriation or conversion of Rent by any Borrower Party or (2) following Borrower or Mortgage Borrower incurred such charges after the occurrence and during the continuance of an Event of Default, except to the extent such charges were (I) necessary to protect against imminent danger to the health or safety of any Tenant or any Person at or in the immediate vicinity of any Individual Property or to prevent any imminent defect, damage or harm to any Individual Property, (II) contracted for prior to such Event of Default or (EIII) any distribution or other payments made consented to in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication writing by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Individual Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Collateral or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) breach or violation by Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage BorrowerBorrower and/or any Applicable SPE Component Entity of any representation, Senior Mezzanine Borrower, Operating Company warranty or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person covenant contained in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueArticle 5 hereof;
(ix) if the failure by Borrower to (A) permit (or cause Mortgage Borrower, Senior Mezzanine A Borrower or Mezzanine B Borrower to permit) on-site inspections of any Individual Property, (B) provide any financial information regarding hereunder and/or pursuant to the other Loan Documents and/or (C) appoint (or cause Mortgage Borrower to appoint) a Qualified Manager pursuant to a Qualified Management Agreement upon the request of Lender which failure constitutes an Event of Default;
(x) a breach of Section 11.1 and/or Section 11.2 hereof, which breach continues for three (3) Business Days after notice from Lender;
(xi) any material amendment, material modification or voluntary termination of any Ground Lease by any Borrower, Mezzanine A Borrower, Mezzanine B Borrower or any Mortgage Borrower without Lender’s consent other than as expressly permitted pursuant to the terms hereof;
(xii) the termination or suspension of any Health Care License arising in connection with any grossly negligent or willful material violation of any Health Care Requirement or otherwise by Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation voluntary termination or warranty set forth in Section 4.1.30 rejection of this Agreement; and
(x) if any such Health Care License by Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower, Senior in each instance, which termination, suspension or rejection constitutes an Event of Default;
(xiii) any violation of Article 6 hereof not otherwise covered pursuant to clauses (b)(iv) and (b)(v) immediately below, provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender, Mortgage Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof; or
(xiv) the incurrence by Mortgage Borrower or Operating Company fails to obtain Lender’s prior consent to of any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required indebtedness prohibited by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of by Mezzanine A Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any voluntary indebtedness prohibited by the Mezzanine A Loan Agreement or by Mezzanine B Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be voluntary indebtedness prohibited by the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalMezzanine B Loan Agreement.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) a Bankruptcy Event occurs, (ii) the first full monthly payment of principal (if any) and interest under the Note is not paid when due; (iii) any representation, warranty or covenant contained in Article 5 is violated or breached and such breach or violation results in, or is a substantial factor in, a substantive consolidation of Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower and/or any Applicable SPE Component Entity with any other Person in a bankruptcy or similar proceedings; (iv) if Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower and/or any Applicable SPE Component Entity fails to obtain Lender’s prior written consent to (A) any voluntary indebtedness or (B) voluntary monetary lien encumbering any Individual Property or any Applicable Collateral to the extent such lien required Lender’s consent under this Agreement or the other Loan Documents; or (v) if Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower and/or any Applicable SPE Component Entity fails to obtain Lender’s prior written consent to any voluntary transfer of any material portion of any Individual Property or any Applicable Collateral or to any voluntary act that causes a change in the ownership of Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower and/or any Applicable SPE Component Entity to the extent such ownership change required Lender’s consent under this Agreement; provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender, Mortgage Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof. Notwithstanding any provision contained herein or in any other Loan Document, no direct or indirect shareholder, partner, member, principal, affiliate, employee, officer, director, agent or representative of Borrower (each, a “Related Party”) (other than (a) Guarantor in accordance with the Guaranty and the Environmental Indemnity and (b) any Manager that is an Affiliate of Borrower in accordance with any Loan Document to which such Manager may be a party) shall have any personal liability for, nor be joined as a party to any action with respect to (i) the payment of any sum of money which is or may be payable hereunder or under any other Loan Documents, including, but not limited to, the repayment of the Loan or (ii) the performance or discharge of any covenants, obligations or undertakings of Guarantor or any Related Party with respect thereto. In addition to the foregoing, anything contained herein or in the other Loan Documents notwithstanding, in no event will the assets of any Related Party (other than Guarantor in accordance with the Guaranty and the Environmental Indemnity) be available to satisfy any obligation of Borrower hereunder.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.)
Exculpation. (a) 22.%2.%3.%4. Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower Pledgor to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerPledgor, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral Collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower Pledgor only to the extent of BorrowerPledgor’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower Pledgor in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower Pledgor (if applicable) as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; or (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower (if applicable) in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Junior Mezzanine Loan Agreement (Ashford Hospitality Prime, Inc.), Senior Mezzanine Loan Agreement (Ashford Hospitality Prime, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ sue for, seek or demand any deficiency judgment against Borrower in any ▇▇y such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order Borrower, but only to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention willful misconduct of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received guarantor in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralLoan;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(iv) the wrongful removal or destruction of any portion of the Property after an Event of Default that adversely affects the value of the Property;
(v) the misapplication or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Property, or (C) any Rents following an Event of Default;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower failure to pay charges for labor or Operating Company fails to obtain Lender’s prior consent to materials or other charges that can create Liens on any voluntary intentional Transfer as required by this Agreement, portion of the Mortgage Loan Agreement or the Mortgages, as applicableProperty;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofLeases;
(viii) Borrower's indemnifications of Lender set forth in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueSection 9.2 hereof;
(ix) if Borrowerthe first full monthly payment of principal and interest under the Note is not paid when due;
(x) failure of Borrower to (A) permit on-site inspections of the Property, Senior Mezzanine Borrower or Mortgage Borrower fails to (B) provide financial information, (C) maintain its status as a Special Purpose Entity single purpose entity or breaches any material representation or warranty set forth (D) appoint a new property manager upon the request of Lender after an Event of Default, each as required by, and in Section 4.1.30 of accordance with the terms and provisions of, this Agreement; andAgreement and the Mortgage;
(xxi) if Borrower, Mortgage Borrower, Senior Mezzanine failure of Borrower or Operating Company fails to obtain Lender’s 's prior written consent to any voluntary Indebtedness (subordinate financing or other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien encumbering the Property; or
(other than Permitted Encumbrancesxii) encumbering failure of Borrower to obtain Lender's prior written consent to any assignment, transfer, or conveyance of the Properties, Senior Mezzanine Collateral Property or Collateral any interest therein as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgageshereunder. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Indebtedness Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or consented to by Borrower.
Appears in 2 contracts
Sources: Loan Agreement (Glimcher Realty Trust), Loan Agreement (Glimcher Realty Trust)
Exculpation. (a) Subject to Except as otherwise provided herein or in the qualifications belowother Loan Documents, Lender shall not enforce the liability and obligation of Borrower or Borrower Principal, as applicable, to pay, perform and and/or observe the obligations contained herein, in the Note, this Agreement, the Pledge Agreement or in the other Loan Documents by any action or proceeding against Borrower wherein a money judgment shall be sought against Borrower, the members/parties of Borrower or Borrower Principal or its respective members, partners, shareholders, officers, or directors (the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding against Borrower to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Note, the Mortgage and the other Loan Documents, or and the interest in the CollateralProperty, or the Rents and any other collateral given to Lender pursuant to created by this Agreement, the Note, the Mortgage and the other Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note, the Mortgage and the other Loan Documents, agrees that it shall not not, except as otherwise provided in Sections 15.1(b) and (c) ▇▇▇ for, seek or demand any deficiency judgment against Borrower the Exculpated Parties in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 15.1 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Mortgage or the other Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Agreement and the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of or any Guaranty indemnity (including, without limitation, those contained in Section 12.6 and Article 14 of this Agreement) made in connection with this Agreement, the Note, the Mortgage and the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the assignment of leases provisions contained in the Mortgage; or (fvi) constitute a prohibition against impair the right of Lender to seek obtain a deficiency judgment against Borrower in order or other judgment on the Note against Borrower if necessary to fully realize the security granted by the Pledge Agreement obtain any Insurance Proceeds or Awards to commence any other appropriate action or proceeding in order for which Lender to exercise its remedies against all of the Collateralwould otherwise be entitled under this Agreement; or (g) constitute a waiver of the right of provided, however, Lender to shall only enforce the liability and obligation of Borrower, by money such judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents Insurance Proceeds and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalAwards.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Loan Agreement (Sun Communities Inc), Loan Agreement (Sun Communities Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not ▇s▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section 10.1 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases and Rents; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgage or to exercise its remedies against all of the CollateralProperty; or (gvii) constitute a waiver of the right of Lender to enforce the liability and C obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as "Borrower 's Recourse Liabilities "):
(ia) fraud fraud, willful misconduct, misrepresentation or intentional misrepresentation failure to disclose a material fact by or on behalf of Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Guarantor or any Guarantor Affiliate of Borrower or Guarantor, or any of their respective agents or representatives in connection with the execution Loan, including by reason of any claim under the Racketeer Influenced and delivery of the Loan Documents and/or the LoanCorrupt Organizations Act (RICO);
(iib) the misappropriation, conversion or misapplication in contravention forfeiture by Borrower of the Loan Documents by BorrowerProperty, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any portion thereof, because of the conduct or purported conduct of criminal activity by Borrower or Guarantor or any of their respective agents or representatives in connection therewith;
(c) material physical waste of the Property or any portion thereof, or after an Event of Default the removal or disposal of any funds portion of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, the Property;
(Ad) any Revenues, (B) Proceeds paid by reason of any Net Liquidation Proceeds Insured Casualty or Insurance Proceeds, (C) any Awards Award received in connection with a CondemnationCondemnation or other sums or payments attributable to the Property not applied in accordance with the provisions of the Loan Documents (except to the extent that Borrower did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums or payments);
(De) any all Rents of the Property received or security deposits collected by or on behalf of Borrower after an Event of Default and not applied to payment of Principal and interest due under the Note, and to the payment of actual and reasonable operating expenses of the Property, as they become due or payable (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or any item similar judicial proceeding in which Borrower is legally prevented from directing the disbursement of Revenue, from whatever sourcesuch sums);
(f) misappropriation or conversion by or on behalf of Borrower (including failure to turn over to Lender on demand following an Event of Default) of any gross revenues (including Rents, or (E) advance deposits, any distribution or other payments made deposits, rents collected in connection with any part advance, funds held by Borrower for the benefit of the Collateral or Senior Mezzanine Collateralanother party and Lease Termination Payments);
(iiig) the misappropriationfailure to pay Taxes, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month provided Borrower shall not be liable to the extent funds to pay such amounts are available in advancethe Tax and Insurance Subaccount and Lender failed to pay same;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(vh) the breach of any representation, warranty, covenant or indemnification provision in the any Loan Document concerning Environmental Indemnity Agreement concerning environmental lawsLaws or Hazardous Substances, hazardous substances including Section 4.21 hereof and asbestos Section 5.8 hereof, and any indemnification clauses (viii) through (xi) of Lender with respect thereto in either documentSection 5.30 hereof;
(vii) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower the failure to pay charges for labor or Operating Company fails to obtain Lender’s prior consent to materials or other charges that can create Liens on any voluntary intentional Transfer as required by this Agreement, portion of the Mortgage Loan Agreement or the Mortgages, as applicableProperty;
(viij) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any provisions of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofLoan Documents;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bk) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under failure to obtain and maintain the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person fully paid for Policies in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes accordance with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueSection 7.1.1 hereof;
(ixl) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty 's indemnification of Lender set forth in Section 4.1.30 of this Agreement9.1 hereof; andand/or
(xm) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower any cost or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required expense incurred by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or Lender in connection with the Loan Documents. Neither the negative capital account enforcement of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (its rights and remedies hereunder or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Loan Document. Notwithstanding anything to the contrary in this Agreement, the Note Agreement or any of the Loan Documents, (A) Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(bI I I I (b) or any other provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender Debt in accordance with the Loan Documents, and (B) Lender's agreement not to pursue personal liability of Borrower as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Debt shall be fully recourse to Borrower in the event that one or more of the following occurs (each, a "Springing Recourse Event"):
(i) an Event of Default described in Section 8. I (d) hereof shall have occurred;
(ii) a breach of any of the representations set forth in the "Recycled SPE Certificate" delivered to Lender in connection with the Loan or a breach of the representation set forth in Section 4. I (b) hereof or a breach of the covenants set forth in Section 5.13 hereof;
(iii) Borrower files a voluntary petition under the Bankruptcy Code or files a petition for bankruptcy, reorganization or similar proceeding pursuant to any other Federal or state bankruptcy, insolvency or similar law;
(iv) Borrower is substantively consolidated with any other Person; unless such consolidation was involuntary and not consented to by Borrower, or Guarantor and is discharged, stayed or dismissed within thirty (30) days following the occurrence of such consolidation;
(v) the filing of an involuntary petition against Borrower under the Bankruptcy Code or an involuntary petition for bankruptcy, reorganization or similar proceeding pursuant to any other Federal or state bankruptcy, insolvency or similar law by any other Person in which (x) Borrower or any Affiliate, officer, director or representative which, directly or indirectly, Controls Borrower colludes with or otherwise assists such Person, and/or (y) Borrower or any Affiliate, officer, director or representative which, directly or indirectly, Controls Borrower solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower by any Person;
(vi) Borrower or any Affiliate, officer, director or representative which, directly or indirectly, Controls Borrower files an answer consenting to, or otherwise acquiescing in, or joining in, any involuntary petition filed against it by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(vii) Borrower or any Affiliate, officer, director or representative which, directly or indirectly, Controls Borrower consents to, or acquiesces in, or joins in, an application for the appointment of a custodian, receiver, liquidator, trustee or examiner for Borrower or any portion of the Property;
(viii) Borrower makes an assignment for the benefit of creditors or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; and/or
(ix) if Guarantor, Borrower or any Affiliate of any of the foregoing, in connection with any enforcement action or exercise or assertion of any right or remedy by or on behalf of Lender under or in connection with the Note, the Mortgage or any other Loan Document, seeks a defense, judicial intervention or injunctive or other equitable relief of any kind or asserts in a pleading filed in connection with a judicial proceeding any defense against Lender or any right in connection with any security for the Loan.
Appears in 2 contracts
Sources: Loan Agreement (Medalist Diversified REIT, Inc.), Loan Agreement (Medalist Diversified REIT, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, or in the CollateralProperties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementMortgages; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any of the Assignments of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by each of the Pledge Agreement Mortgages or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperties; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Insurance Proceeds or Insurance Proceedspaid by reason of any Casualty, (C) any Awards received in connection with a Condemnation, or (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgages concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
: (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Properties or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, or Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral Properties as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Loan Agreement (Harrahs Entertainment Inc), Loan Agreement (Harrahs Entertainment Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, or in the CollateralProperties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not ▇▇▇ sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section 9.3 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementMortgages; (ciii) affect the validity validity, enforceability or enforceability terms of or any the Limited Recourse Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; or (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgages or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; Properties.
(b) Nothing contained herein shall in any manner or (g) constitute a waiver of way release, affect or impair the right of Lender to enforce the liability recover, and obligation of BorrowerBorrower shall be fully and personally liable and subject to legal action, by money judgment or otherwise, to the extent of for any actual loss, damage, cost, expense, liabilitydamage, claim or other obligation incurred by Lender (including without limitation reasonable and documented attorneys’ fees and costs reasonably incurredcourt costs) incurred or suffered by Lender arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by any Individual Borrower, Mortgage BorrowerSole Member, Senior Mezzanine Borrowerany Master Tenant, Operating Company any Lineage Subtenant or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of the Loan Documents by any Individual Borrower, Mortgage BorrowerSole Member, Senior Mezzanine Borrowerany Master Tenant, Operating Company any Lineage Subtenant or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents the Loan or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralProperties;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgages concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either any such document;
(iv) the removal or disposal of any portion of any Individual Property during the continuance of an Event of Default (unless such portion of the Individual Property is replaced by an item of equal or greater value);
(v) material physical waste of any Individual Property caused by the intentional acts or intentional omissions of any Individual Borrower, Sole Member, any Master Tenant, any Lineage Subtenant or Guarantor (provided that physical waste shall not include normal and reasonable wear and tear to any Individual Property that occurs in the ordinary course of business);
(vi) if the misapplication or conversion by any Individual Borrower, Mortgage BorrowerSole Member, Senior Mezzanine Borrower any Master Tenant or Operating Company fails to obtain Lender’s prior consent to Guarantor of (A) any voluntary intentional Transfer as required Insurance Proceeds paid by this Agreementreason of any Casualty, (B) any Awards received in connection with a Condemnation, (C) any Rents following the Mortgage Loan Agreement occurrence and during the continuance of an Event of Default, or the Mortgages, as applicable(D) any Rents paid more than one (1) month in advance;
(vii) failure to pay charges for labor or materials or other charges or judgments that can create Liens on any portion of any Individual Property unless (A) such charges or other judgments are being contested as permitted hereunder, (B) funds for payment of such charges or judgments are being held by Lender in any Reserve Fund or (C) there are insufficient Rents to pay the same;
(viii) any security deposits, advance deposits or any other deposits collected by Borrower with respect to any of the Properties Individual Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties such Individual Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueLeases;
(ix) except with respect to the release of Condemnation Parcel pursuant to Section 2.5.5 hereof, the difference, if Borrowerany, Senior Mezzanine Borrower or Mortgage Borrower fails between (A) the actual amount of any prepayment of the Loan paid to maintain its status as Lender in connection with a Special Purpose Entity or breaches deemed sale of such Individual Property pursuant to Section 2.4.2(b) and (B) the Adjusted Release Amount of such Individual Property, provided that any material representation or warranty set forth in Section 4.1.30 liability incurred pursuant to this clause (ix) shall not exceed ten percent (10%) of this Agreement; andthe Original Principal Indebtedness;
(x) if a breach of Section 9.2 hereof;
(xi) any physical damage to any Property resulting from the removal of equipment, personalty, fixtures or improvements therefrom in connection with a foreclosure by any lender to any Master Tenant or any Lineage Subtenant having a security interest in such equipment, personalty, fixtures or improvements;
(xii) any Individual Borrower failing, or at any time having failed to be a Special Purpose Entity, including, without limitation, by virtue of owning any property other than the Property;
(xiii) the failure of the representations contained in Section 4.1.38(v) or 4.1.38(xi) to be true, without giving effect to any exceptions to such representations;
(xiv) a breach of the first sentence of Section 5.1.20(e);
(xv) any act or omission of any Individual Borrower, Mortgage BorrowerSole Member, Senior Mezzanine Borrower Guarantor, any Master Tenant, any Lineage Subtenant or Operating Company fails to obtain their respective Affiliates which hinders, delays or interferes with Lender’s prior consent to enforcement of its rights under the Loan Documents or the realization on any voluntary Indebtedness (collateral for the Loan, other than acts or omissions taken (xor not taken) in good faith; or
(xvi) to the extent that the Earn-Out Property (▇▇▇▇▇▇ ▇▇▇▇ SW) becomes collateral for the Loan, all amounts set forth on Schedule 7.5.1 with respect to Mortgage Borrower, Permitted Indebtedness and Unfunded Obligations related to the Earn-Out Property (y▇▇▇▇▇▇ ▇▇▇▇ SW) with respect to Operating Company, Permitted Indebtedness (Operating Company), that have not been previously satisfied by the seller of such Property as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Propertiesdate on which the applicable Individual Borrower acquired the same, Senior Mezzanine Collateral or Collateral for so long as required by this Agreementsuch Unfunded Obligations remain unsatisfied; provided, the Senior Mezzanine Loan Agreementhowever, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary that there shall be no liability under this Agreement, neither any present or future Affiliate of Borrower clause (other than Guarantor, xvi) to the extent provided under that the Guaranty) nor any present Tenant at such Individual Property delivers an executed notice of commencement of its Lease confirming the satisfaction of such Unfunded Obligations or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with such other notice by such Tenant confirming the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalsame).
(bc) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Mortgages or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower (1) in the event of: (aa) any Individual Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (bb) the filing of an involuntary petition against any Individual Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law in which Borrower, Sole Member or Guarantor colludes with, or otherwise assists such Person, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (cc) Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (dd) Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of any Individual Property; or (ee) Borrower making an assignment for the benefit of creditors; (2) if any Individual Borrower fails to comply in any material respect with any representation, warranty or covenant set forth in Section 4.1.30 hereof; (3) if Borrower fails to obtain Lender’s prior written consent to any Indebtedness or voluntary Lien encumbering any of the Properties except Indebtedness and Liens permitted pursuant to this Agreement; provided, however, to the extent any such Indebtedness results from the recharacterization of an operating lease to a capital lease, Borrower’s liability hereunder shall be limited to any loss, cost, expense, damage, claim or other obligation (including without limitation reasonable and documented attorneys’ fees and court costs) incurred or suffered by Lender in connection therewith; or (4) if Borrower fails to obtain ▇▇▇▇▇▇’s prior written consent to any Transfer, to the extent such consent is required by this Agreement.
Appears in 2 contracts
Sources: Loan Agreement (Lineage, Inc.), Loan Agreement (Lineage, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against BorrowerBorrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not ▇s▇▇ for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section shall not, however,
, (a1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (c3) affect the validity or enforceability of any indemnity, guaranty or any similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (d4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the assignment of leases and rents contained in the Security Instrument and in any other Loan Documents; (6) impair the right of Lender to obtain the appointment enforce Section 4.12(e) of a receiverthis Agreement; (e) intentionally omitted; (f7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty (or any portion thereof); or (g) 8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation Loss incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower Party in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriationwillful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Debt filed by any Borrower Party or any other action of any Borrower Party exercised in bad faith that delays, conversion opposes, impedes, obstructs, hinders, enjoins or misapplication otherwise interferes with or frustrates the efforts of Lender to exercise any rights and remedies available to Lender as provided herein and in contravention the other Loan Documents;
(iv) waste to the Property caused by the intentional acts or intentional omissions of any Borrower Party and/or the removal or disposal of any portion of the Loan Documents Property by Borrower(or on behalf of) any Borrower Party after an Event of Default;
(v) the misapplication, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company misappropriation or conversion by any Guarantor Borrower Party of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenuesinsurance proceeds paid by reason of any loss, damage or destruction to the Property (or any portion thereof), (B) any Net Liquidation Proceeds Awards or Insurance Proceedsother amounts received in connection with the Condemnation of all or a portion of the Property, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, (D) any Tenant security deposits or Rents collected in advance or (E) any distribution other monetary collateral for the Loan (including, without limitation, any Reserve Funds and/or any portion thereof disbursed to (or other payments made in connection with any part of at the Collateral or Senior Mezzanine Collateral;
(iiidirection of) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document);
(vi) failure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof , in each case, to the extent there existed sufficient cash flow from the Property to do so (provided, however, that there shall be no personal liability under this subsection (vi) solely for the failure to pay Taxes if Borrower(A) sufficient sums had been reserved hereunder for the express purpose of paying the Taxes in question and Lender failed to pay same, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain (B) Lender’s prior consent access to such sums was not restricted or constrained in any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicablemanner and (C) no Event of Default was continuing);
(vii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as expressly provided herein (provided, however, that there shall be no personal liability under this subsection (vii) for the aforementioned failures to the extent that, in each case, (A) each applicable failure is itself a failure to pay Insurance Premiums or is solely as a result of a failure to pay Insurance Premiums and (B)(1) there existed insufficient cash flow from the Property to pay Insurance Premiums or (2)(I) sufficient sums had been reserved hereunder for the express purpose of paying the Insurance Premiums in question and Lender failed to pay same, (II) Lender’s access to such sums was not restricted or constrained in any manner and (III) no Event of Default was continuing);
(viii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiiix) in any tax on the event of:
(A) Borrowermaking and/or recording of the Security Instrument, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Note or any of the Propertiesother Loan Documents or any transfer or similar taxes (whether due upon the making of the same or upon Lender’s exercise of its remedies under the Loan Documents), but excluding any income, franchise or other similar taxes;
(x) the Collateralseizure or forfeiture of the Property, the Senior Mezzanine Collateral or any portion thereof, other than at or Borrower’s interest therein, resulting from criminal wrongdoing by any Borrower Party;
(xi) the failure to make any REMIC Payment and/or any True Up Payment, to permit on-site inspections of the Property (or any portion thereof) and/or to provide the Required Financial Items, in each case, as and when required herein;
(xii) any violation or breach of the Property Document Provisions and/or any Property Document Event;
(xiii) the failure to purchase or replace (as applicable) any Interest Rate Cap Agreement or Replacement Interest Rate Cap Agreement (as applicable), in each case, as and when required by the terms hereof;
(xiv) any indemnity obligations of Lender to Bank under the Restricted Account Agreement;
(xv) the failure of Borrower to appoint a New Manager upon the request of Lender; or (E) BorrowerLender and/or the failure of Borrower to comply with any limitations on instructing the Manager, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, each as required by and in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company)accordance with, as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of , the Propertiesterms and provisions of, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, Assignment of Management Agreement and the Mortgage Loan Agreement, the Pledge Agreement Security Instrument;
(xvi) any violation or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate breach of any Borrower shall representation, warranty or covenant contained in Article 5 hereof;
(xvii) any exercise of the Restricted Account Change Right;
(xviii) any failure to (a) obtain, maintain, and/or have in place a current certificate of occupancy at the Property that complies with all Legal Requirements, (b) update any personal liability, directly certificate of occupancy or indirectly, under or in connection with the Loan Documents. Neither the negative capital account obtain any new certificate of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall occupancy at any time be deemed as required by Legal Requirements, and/or (c) to be operate the property Property in a manner consistent with the certificate of occupancy that is in place at the Property (including, without limitation, any failure to operate the Property in accordance with the specified uses listed on the then current certificate of occupancy).
(xix) any violation or an asset breach of the Cash Management Provisions; and/or (xx) any Borrower claims to divest, subordinate or extinguish the lien of the Security Instrument (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collectincluding, enforce or proceed against without limitation, any such negative capital account claims resulting from any breach or obligation other failure to restore, contribute or loan capitalcomply with Section 22 of the New York Lien Law).
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower (I) in the event that: (i) any representation, warranty or covenant contained in Article 5 or Article 6 hereof is violated or breached (provided, that, with respect to any such violation or breach of Article 5 hereof, such violation or breach is evidenced by a court, in a proceeding with respect to Creditors Rights Laws involving any one or more Constituent Owner(s) of Borrower and/or SPE Component Entity (any such Person, a “Bankrupt Person”), ordering the substantive consolidation of the assets and liabilities of Borrower and/or SPE Component Entity with the assets and liabilities of any Bankrupt Person on the basis of, among other things, such violation or breach) or (ii) a Bankruptcy Event occurs; and (II) all events (without limitation of the foregoing) in the Recourse Amount (provided, that, (A) the recourse liability under this subsection (II) shall not exceed an amount equal to the Stipulated Recourse Amount and (B) notwithstanding anything to the contrary contained herein or in any other Loan Document, no portion of the sums applied or deemed applied (by the terms hereof, under applicable Legal Requirements or otherwise), from time to time, in reduction of the Debt from any source shall be deemed to have been applied to reduce Borrower’s recourse liability under this subsection (II) until such time as the entire outstanding amount of the Debt shall have been indefeasibly reduced (by cash payment actually received by Lender) to an amount equal to the Recourse Amount). For purposes of clarification and for the avoidance of doubt, the recourse carveouts in Section 13.1(a) above and this Section 13.1(b) shall not be deemed to be mutually exclusive or otherwise limit one another; without limiting the foregoing, if a particular event, condition, circumstance or occurrence would trigger recourse liability both under Section 13.1(a) above and this Section 13.1(b), recourse liability shall apply under all of such Sections (as and to the extent provided in such Sections).
Appears in 2 contracts
Sources: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations Obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Gross Revenues or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Gross Revenues and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section 11.22 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including reasonable attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as "Borrower's Recourse Liabilities"):
(i) fraud fraud, gross negligence, willful misconduct, misrepresentation or intentional misrepresentation failure to disclose a material fact by or on behalf of Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrowerany Affiliate of Borrower or Guarantor, Operating Company or any Guarantor of their respective agents or representatives in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in any other Loan Document concerning environmental laws, hazardous substances and and/or asbestos and any indemnification of Lender with respect thereto in either document;
(viiii) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower wrongful removal or Operating Company fails destruction of any portion of the Property or damage to obtain Lender’s prior consent to any voluntary intentional Transfer as required the Property caused by this Agreement, the Mortgage Loan Agreement willful misconduct or the Mortgages, as applicablegross negligence;
(viiiv) any security depositsmaterial, advance deposits or any other deposits collected with respect to any of physical waste at the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofProperty;
(viiiv) in the event of:
(A) Borrowerforfeiture by Borrower of the Property, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under portion thereof, because of the Bankruptcy Code conduct or any other Federal purported conduct of criminal activity by Borrower or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Personrepresentatives in connection therewith, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or including by reason of any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, claim under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; Racketeer Influenced and Corrupt Organizations Act (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender"RICO"), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ixvi) if Borrowerthe misapplication, Senior Mezzanine Borrower misappropriation or Mortgage Borrower fails to maintain its status as a Special Purpose Entity conversion by or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate on behalf of Borrower (other than Guarantorincluding, to the extent provided under the Guaranty) nor any present or future shareholderwithout limitation, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account institution or operation of any Affiliate of Borrower cash management as provided in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents) of (A) any Insurance Proceeds actually received by or on behalf of Borrower which were paid by reason of any loss, Lender shall not be deemed damage or destruction to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.Property,
Appears in 2 contracts
Sources: Loan Agreement (Lodging Fund REIT III, Inc.), Loan Agreement (Lodging Fund REIT III, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any assignment of leases contained in the Mortgage; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower (but not Guarantor) in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs expenses reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Principal or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriationgross negligence or willful misconduct of Borrower, conversion Principal or misapplication in contravention Guarantor;
(iii) material physical waste of the Loan Documents Property;
(iv) the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication or conversion by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Principal or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any RevenuesInsurance Proceeds paid by reason of any loss, damage or destruction to the Property which are not applied by Borrower in accordance with this Agreement, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of the Property which are not applied by Borrower in accordance with this Agreement, (DC) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (ED) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(ivvi) failure to pay charges for labor or materials or other charges or judgments that can create Liens on any act portion of actual intentional physical waste by Borrowerthe Property (other than resulting from Lender’s failure to pay Taxes from the Tax and Insurance Escrow Fund provided that (A) no other Event of Default shall then exist, Mortgage Borrower(B) each of Borrower has performed all of its respective obligations under Sections 5.1.2 and 7.2 hereof, Senior Mezzanine Borrowerand (C) sufficient funds are then on deposit therein and such funds are allocated for the payment of such Taxes), Operating Company or any Guarantor;
provided, that, if (vi) such Lien is fully bonded to the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification satisfaction of Lender with respect thereto in either document;
(viwhich bond shall create no obligations on the part of Borrower), and (ii) if Borrowersuch Lien is discharged of record, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails shall not have any liability to obtain Lender’s prior consent to any voluntary intentional Transfer as required by Lender for such Lien under this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableSection 9.3;
(vii) failure to appoint a new property manager upon the request of Lender as permitted under this Agreement; or
(viii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;.
(viiia) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor Principal filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor Principal under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage BorrowerPrincipal or Guarantor colludes with, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or otherwise assists such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company Borrower or any Guarantor Principal from any Person; (Cc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor Principal filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Dd) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor Principal consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Principal or any portion thereof, other than at of the request of LenderProperty; (e) Borrower or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Principal making an assignment for the benefit of creditors (other than Lender)creditors, or admitting, admitting in writing or in any legal insolvency or bankruptcy proceeding, its insolvency or inability to pay its debts as they become due;
; (ixii) if the first full monthly payment under the Note not being paid within five (5) days of notice that such payment is late (provided, however, that such grace period relates only to the recourse trigger described in this paragraph); (iii) if Borrower fails to permit on-site inspections of the Property (subject to the rights of tenants), or fails to provide financial information subject to any applicable cure period (except for financial information required to be delivered by a tenant pursuant to the applicable Lease that has not been delivered to Borrower, Senior Mezzanine provided Borrower or Mortgage has requested such financial information from such tenant); (iv) if Borrower fails to maintain its status as a Special Purpose Entity or Entity, breaches any material representation or fails to comply with any warranty or covenant set forth in Section 4.1.30 of this Agreementhereof; and
(xv) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company any Principal fails to obtain Lender’s prior written consent (to extent such consent is required) to any Indebtedness or other voluntary Indebtedness Lien; or (other than vi) if Borrower fails to obtain Lender’s prior written consent (xto extent such consent is required) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral Transfer as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the MortgagesMortgage. Notwithstanding anything the provision set forth in clause (v) of this paragraph, a voluntary Lien other than a Lien securing an extension of credit filed against the Property shall not constitute a full recourse trigger for purposes of this paragraph provided such Lien (A) is fully bonded to the contrary under this Agreementsatisfaction of Lender and discharged of record within ninety (90) days of filing, neither or (B) within such ninety (90) day period, Lender receives affirmative title insurance from the title insurance company insuring the lien of the Mortgage that such Lien is subject and subordinate to the lien of the Mortgage and no enforcement action is commenced by the applicable Lien holder. Upon the satisfaction of the conditions set forth in the preceding sentence with respect to the recourse trigger described in clause (v) above, or the acceptance by Lender of any present cure by Borrower of a recourse trigger described in clauses (ii), (iii) or future Affiliate (vi) above (which Lender is not obligated to accept and may reject or accept in its sole and absolute discretion), the Debt shall no longer be fully recourse to Borrower solely as a result of such trigger, provided, however, Borrower (other than Guarantor, shall remain liable to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal loss, damage, cost, expense, liability, directly claim or indirectly, under other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with such trigger. Notwithstanding the Loan Documents. Neither foregoing, provided that any natural person serving as an Independent Director has agreed in writing that it is not, and will not become, a stockholder in Borrower, Guarantor or any Affiliate, the negative capital account disqualification of such person from serving as an Independent Director because (1) such person became a stockholder in Guarantor or any publicly held Affiliate of Borrower in or Guarantor without the knowledge or consent of Borrower, Guarantor or the applicable Affiliate, or (2) a member of such natural person’s immediate family is, or became, a stockholder in Guarantor or any other publicly traded Affiliate of Borrower in any other Affiliate or Guarantor without the knowledge or consent of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account Guarantor or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collectapplicable Affiliate, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed trigger recourse under this Section 9.3 provided Borrower, upon obtaining knowledge of such person’s ineligibility to have waived any right which Lender may have under Section 506(a)serve as an Independent Director, 506(b), 1111(b) or any other provisions of the Bankruptcy Code promptly causes such person to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender resign and replaces such person with an eligible Independent Director in accordance with the Loan Documentsterms hereof.
Appears in 2 contracts
Sources: Loan Agreement (Inland Diversified Real Estate Trust, Inc.), Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender Mortgagee shall not enforce the liability and obligation of Borrower Mortgagor to perform and observe the obligations contained in the Note, Note or this Agreement, the Pledge Agreement or the other Loan Documents Mortgage by any action or proceeding wherein a money judgment shall be sought against BorrowerMortgagor or any general or limited partner of Mortgagor (hereafter collectively referred to as the "Exculpated Parties"), except that Lender Mortgagee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder Mortgagee to enforce and realize upon its interest under the Note, this AgreementMortgage, the Pledge Agreement Other Security Documents, and the other Loan Documents, or interest in the CollateralMortgaged Property, or the Rents and any other collateral given to Lender pursuant to Mortgagee created by this Mortgage and the Loan Other Security Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower the Exculpated Parties only to the extent of Borrower’s Mortgagor's interest in the Collateral Mortgaged Property, in the Rents and in any other collateral given to Lender, and LenderMortgagee. Mortgagee, by accepting the Note, Note and this Agreement, the Pledge Agreement and the other Loan DocumentsMortgage, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower the Exculpated Parties in any such action or proceeding underproceeding, under or by reason of, of or in connection with, with the Note, the Other Security Documents or this Agreement, the Pledge Agreement or the other Loan DocumentsMortgage. The provisions of this Section paragraph shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsNote, the Other Security Documents or this Mortgage; (bii) impair the right of Lender Mortgagee to name Borrower Mortgagor as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge Agreementthis Mortgage; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan Note, this Mortgage, or any of the rights and remedies of Lender thereunderOther Security Documents; (div) impair the right of Lender Mortgagee to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases and Rents executed in connection herewith; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of impair the right of Lender Mortgagee to enforce the liability and obligation of Borrower, by money judgment or otherwise, bring suit with respect to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company the Exculpated Parties or any Guarantor other person or entity in connection with the execution and delivery Note, this Mortgage or the Other Security Documents; (vii) impair the right of Mortgagee to obtain the Rents received by any of the Loan Documents and/or Exculpated Parties after the Loan;
(ii) the misappropriation, conversion or misapplication in contravention occurrence of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default; (viii) impair the right of Mortgagee to bring suit with respect to the Exculpated Parties' misappropriation of tenant security deposits or Rents collected in advance; (ix) impair the right of Mortgagee to obtain insurance proceeds or condemnation awards due to Mortgagee under this Mortgage; (x) impair the right of Mortgagee to enforce the provisions of sub-paragraphs 36(g) through 36(j), inclusive and paragraphs 34 and 35 of this Mortgage against the Mortgagor (excluding any general or limited partner thereof); or (Exi) any distribution or other payments made in connection with impair the right of Mortgagee to recover any part of the Collateral or Senior Mezzanine Collateral;
Debt from the Mortgagor (iii) excluding the misappropriationgeneral and limited partners of Mortgagor), conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) following the breach of any representation, warranty, covenant contained in paragraph 9 or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital56 hereof.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: First Mortgage and Security Agreement (Century Properties Fund Xvi), First Mortgage and Security Agreement (Century Properties Fund Xii)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against BorrowerBorrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, Collateral (or any portion thereof) or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not sue ▇▇▇ for▇, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c3) affect the validity or enforceability of any indemnity, guaranty or any similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (d4) impair the right rights of Lender to (A) obtain the appointment of a receiverreceiver and/or (B) enforce its security interest in the Accounts as provided in Articles 8 and 9 hereof; (e5) intentionally omittedimpair the enforcement of the Pledge Agreement; (f6) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralCollateral (or any portion thereof); or (g7) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation reasonable out-of-pocket Loss incurred by Lender (including out-of-pocket attorneys’ fees and costs reasonably incurredincurred but in all events excluding consequential, punitive and special damages (except to the extent Lender is actually liable for such damages)) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower Party in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of any Borrower Party;
(iii) material physical waste to any Individual Property arising from the Loan Documents intentional acts or omissions of any Borrower Party (it being acknowledged that omissions to perform acts for which sufficient cash flow is not available from the Properties shall not be deemed an intentional omission for purposes of this clause (iii));
(iv) the removal or disposal by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Borrower Party or any Guarantor of its respective Affiliates of any funds portion of Borrower, Senior Mezzanine Borrower, Mortgage any Individual Property after an Event of Default unless such portion of any Individual Property so removed or so disposed of is replaced with property of equal utility and value or such removal or disposal was otherwise permitted pursuant to the terms and conditions hereof;
(v) the misapplication or conversion by any Borrower or Operating Company, including, without limitation, Party of (A) any Revenuesinsurance proceeds paid by reason of any loss, damage or destruction to any Individual Property (or any portion thereof), (B) any Net Liquidation Proceeds Awards or Insurance Proceedsother amounts received in connection with the Condemnation of all or a portion of any Individual Property, (C) any Awards received in connection with a CondemnationRents following an Event of Default, (D) any Rents paid more than one month in advance and/or (E) any Net Liquidation Proceeds After Debt Service);
(vi) failure to pay Taxes, charges for labor or security deposits materials or other charges that can create liens on any portion of any Individual Property in accordance with the terms and provisions hereof; provided, however, Borrower shall have no liability under this subsection (vi) if (A) such Taxes, charges for labor or materials or other charges that can create liens are being contested in accordance with the terms and conditions hereof or (B) sufficient cash flow is not available from the Properties to pay such amounts; provided, that, in no instance shall Borrower be released from any item liability pursuant to this clause (vi) to the extent (1) such insufficiency of Revenue, cash flow arises from whatever sourcethe intentional misappropriation or conversion of Rent by any Borrower Party or (2) following Borrower or Mortgage Borrower incurred such charges after the occurrence and during the continuance of an Event of Default, except to the extent such charges were (I) necessary to protect against imminent danger to the health or safety of any Tenant or any Person at or in the immediate vicinity of any Individual Property or to prevent any imminent defect, damage or harm to any Individual Property, (II) contracted for prior to such Event of Default or (EIII) any distribution or other payments made consented to in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication writing by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Individual Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Collateral or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) breach or violation by Borrower, Mortgage BorrowerBorrower and/or any SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) of any representation, Senior Mezzanine Borrower, Operating Company warranty or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person covenant contained in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueArticle 5 hereof;
(ix) if Borrowerthe failure by Borrower to (A) permit (or cause Mortgage Borrower to permit) on-site inspections of any Individual Property, Senior Mezzanine (B) provide any financial information regarding hereunder and/or pursuant to the other Loan Documents and/or (C) appoint (or cause Mortgage Borrower to appoint) a Qualified Manager pursuant to a Qualified Management Agreement upon the request of Lender which failure constitutes an Event of Default;
(x) a breach of Section 11.1 and/or Section 11.2 hereof, which breach continues for three (3) Business Days after notice from Lender;
(xi) any material amendment, material modification or voluntary termination of any Ground Lease by any Borrower or any Mortgage Borrower without Lender’s consent other than as expressly permitted pursuant to the terms hereof;
(xii) the termination or suspension of any Health Care License arising in connection with any grossly negligent or willful material violation of any Health Care Requirement or otherwise by Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation voluntary termination or warranty set forth in Section 4.1.30 rejection of this Agreement; and
(x) if Borrower, any such Health Care License by Borrower or Mortgage Borrower, Senior in each instance, which termination, suspension or rejection constitutes an Event of Default;
(xiii) any violation of Article 6 hereof not otherwise covered pursuant to clauses (b)(iv) and (b)(v) immediately below, provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender, Mortgage Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof; or
(xiv) the incurrence by Mortgage Borrower or Operating Company fails to obtain Lender’s prior consent to of any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required indebtedness prohibited by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) a Bankruptcy Event occurs, (ii) the first full monthly payment of principal (if any) and interest under the Note is not paid when due; (iii) any representation, warranty or covenant contained in Article 5 is violated or breached and such breach or violation results in, or is a substantial factor in, a substantive consolidation of Borrower, Mortgage Borrower and/or any SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) with any other Person in a bankruptcy or similar proceedings; (iv) if Borrower, Mortgage Borrower and/or any SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) fails to obtain Lender’s prior written consent to (A) any voluntary indebtedness or (B) voluntary monetary lien encumbering any Individual Property or any Collateral to the extent such lien required Lender’s consent under this Agreement or the other Loan Documents; or (v) if Borrower, Mortgage Borrower and/or any SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) fails to obtain Lender’s prior written consent to any voluntary transfer of any material portion of any Individual Property or any Collateral or to any voluntary act that causes a change in the ownership of Borrower, Mortgage Borrower and/or any SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) to the extent such ownership change required Lender’s consent under this Agreement; provided, however, for the avoidance of doubt, a Sale or Pledge resulting from the consummation of an enforcement action by Lender, Mortgage Lender or the holder of any Mezzanine Loan shall not be a Sale or Pledge in violation of Article 6 hereof. Notwithstanding any provision contained herein or in any other Loan Document, no direct or indirect shareholder, partner, member, principal, affiliate, employee, officer, director, agent or representative of Borrower (each, a “Related Party”) (other than (a) Guarantor in accordance with the Guaranty and the Environmental Indemnity and (b) any Manager that is an Affiliate of Borrower in accordance with any Loan Document to which such Manager may be a party) shall have any personal liability for, nor be joined as a party to any action with respect to (i) the payment of any sum of money which is or may be payable hereunder or under any other Loan Documents, including, but not limited to, the repayment of the Loan or (ii) the performance or discharge of any covenants, obligations or undertakings of Guarantor or any Related Party with respect thereto. In addition to the foregoing, anything contained herein or in the other Loan Documents notwithstanding, in no event will the assets of any Related Party (other than Guarantor in accordance with the Guaranty and the Environmental Indemnity) be available to satisfy any obligation of Borrower hereunder.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, Collateral or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
: (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, Properties or the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine any of the limited liability companies constituting Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral Properties or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: First Mezzanine Loan Agreement (Harrahs Entertainment Inc), First Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
: (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgage or to exercise its remedies against all of the CollateralProperty; or (gvii) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) (collectively, “Lender’s Losses”) arising out of or in connection with any of the following:
following (iall such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”): (a) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with obtaining the execution and delivery Loan; (b) physical waste of the Loan Documents and/or Property or any portion thereof (other than acts committed by a third party non-affiliated property manager), or after an Event of Default the Loan;
(ii) the misappropriation, conversion removal or misapplication in contravention disposal of any portion of the Loan Documents Property (other than acts committed by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company a third party non-affiliated property manager); (c) any Proceeds paid by reason of any Insured Casualty or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards Award received in connection with a CondemnationCondemnation or other sums or payments attributable to the Property not applied in accordance with the provisions of the Loan Documents (other than acts committed by a third party non-affiliated property manager) (except to the extent that Borrower did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums or payments); (Dd) any all Rents of the Property received or security deposits collected by or on behalf of Borrower after an Event of Default and not applied to payment of Principal and interest due under the Note, and to the payment of actual and reasonable operating expenses of the Property, as they become due or payable (other than acts committed by a third party non-affiliated property manager) (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or any item similar judicial proceeding in which Borrower is legally prevented from directing the disbursement of Revenue, from whatever sourcesuch sums); (e) misappropriation (including failure to turn over to Lender on demand following an Event of Default) of tenant security deposits and rents collected in advance, or of funds held by Borrower for the benefit of another party (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
than acts committed by a third party non-affiliated property manager); (iiif) the misappropriationfailure to pay Taxes, conversion provided that Borrower shall not be liable (A) to the extent funds to pay such amounts are available in the Tax and Insurance Subaccount and Lender failed to pay same or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company has elected not to pay the same pursuant to Section 3.3 or any Guarantor of any security deposits or (B) Rents paid more than one are insufficient to yield sufficient funds to pay such amounts; (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(vg) the breach of any representation, warranty, covenant or indemnification provision in any Loan Document concerning Environmental Laws or Hazardous Substances, including Sections 4.21 and 5.8, and clauses (viii) through (xi) of Section 5.30; (h) any representation or warranty made by Borrower in Section 4.1 shall be false or misleading in any material respect as of the Environmental Indemnity Agreement concerning environmental lawsdate made, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any breach of the Properties which are not delivered to Mortgage Lender upon covenants set forth in Section 5.13 (other than a foreclosure breach of any of the Properties or action covenants described in lieu thereofclauses (x) and (xxi) (with respect to unsecured trade payables) set forth in the definition of “Special Purpose Bankruptcy Remote Entity” on Schedule 5, except to if the extent any such security deposits were applied in accordance with the terms and conditions of any same occurs as a result of the Leases prior to the occurrence economic performance of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency lawProperty); (Bi) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliatesdirect or indirect Affiliates taking any action or making any omission intended or reasonably likely to hinder, agents delay, impair or employees colludes with prevent Lender in or such other Personfrom enforcing any and all of its rights and remedies under or pursuant to the Loan Documents or at law or in equity (unless the same is brought in good faith and is determined in favor of Borrower or Guarantor pursuant to a final, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Personnon-appealable judgment of a court of competent jurisdiction); (Cj) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any termination of the Properties, Management Agreement or the Collateral, removal of the Senior Mezzanine Collateral or any portion thereof, other than at the request of then-current Manager as property manager thereunder without Lender’s consent; or (Ek) Borrower’s action or inaction which results in the termination of the Ground Lease, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit ’s failure to exercise all of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty options currently set forth in Section 4.1.30 the Ground Lease to extend the term of this Agreementthe Ground Lease to at least December 31, 2021 or Borrower’s failure to obtain an extension of the Ground Lease to a term of at least ten (10) years beyond the Stated Maturity Date; and
unless in any case, Borrower obtains replacement parking facilities that, (xA) if Borrowersubject to an agreement, Mortgage Borrowerlease or otherwise, Senior Mezzanine Borrower or Operating Company fails grant rights to obtain Lender’s prior consent to any voluntary Indebtedness such replacement parking facilities for a term of at least ten (other than 10) years beyond the Stated Maturity Date (x) with respect to Mortgage Borrowerthe “Replacement Parking Facilities Agreement”), Permitted Indebtedness and (yB) are sufficient to enable the Property to comply with respect to Operating Companyapplicable Legal Requirements (including, Permitted Indebtedness (Operating Companywithout limitation, zoning requirements), as applicable) or voluntary Lien each of (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of BorrowerA) and neither (B) as determined by Lender nor in its successors or assigns reasonable discretion. Borrower and Guarantor shall have be released from any right further liability pursuant to collectclause (k) above in the event that the replacement parking facilities and the Replacement Parking Facilities Agreement are sufficient to enable the Property to comply with applicable Legal Requirements (including, enforce or proceed against any such negative capital account or obligation to restorewithout limitation, contribute or loan capital.
(bzoning requirements) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing and are otherwise satisfactory to Lender in accordance with the Loan Documentsits reasonable discretion.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment or any deficiency judgment or other judgment establishing personal liability shall be sought against BorrowerBorrower or any principal, director, officer, employee, beneficiary, shareholder, partner, member, trustee, agent, or Affiliate of Borrower or any legal representatives, successors or assigns of any of the foregoing (collectively, the “Exculpated Parties”), except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the CollateralCollateral (or any portion thereof), or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower or any of the Exculpated Parties in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a1) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b2) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c3) affect the validity or enforceability of any indemnity, guaranty or any similar instrument (including, without limitation, indemnities set forth in Article 12 hereof, Section 11.2 hereof, in the Guaranty and the Environmental Indemnity) made in connection with the Loan or any of the rights and remedies of Lender thereunderthereunder (including, without limitation, Lender’s right to enforce said rights and remedies against Borrower and/or Guarantor (as applicable) personally and without the effect of the exculpatory provisions of this Article 13); (d4) impair the rights of Lender to (A) obtain the appointment of a receiver and/or (B) enforce its rights and remedies provided in Articles 8 and 9 hereof; (5) impair the enforcement of the Pledge Agreement; (6) impair the right of Lender to obtain the appointment enforce Section 4.12(e) of a receiverthis Agreement; (e) intentionally omitted; (f7) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty (or any portion thereof), the Mezzanine A Collateral (or any portion thereof) or the Collateral (or any portion thereof); or (g) 8) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation Loss incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower Party in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of any Borrower Party;
(iii) any litigation or other legal proceeding related to the Loan Documents Debt filed by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Borrower Party or any Guarantor other action of any funds Borrower Party that delays, opposes, impedes, obstructs, hinders, enjoins or otherwise interferes with or frustrates the efforts of BorrowerLender to exercise any rights and remedies available to Lender as provided herein and in the other Loan Documents; provided, Senior Mezzanine Borrowerhowever, Mortgage that Borrower shall have no liability under this clause (iii) in the event that such Borrower Party asserts any defense or Operating Companyotherwise exercises any of its rights in good faith, including, without limitation, (A) any Revenuesby means of, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnationwith, (D) any Rents the filing, pursuit or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication maintenance by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor such Borrower Party of any security deposits litigation, proceeding, action or Rents paid more than one (1) month claim in advancegood faith;
(iv) (A) waste to the Property caused by the intentional acts or intentional omissions of any act Borrower Party and/or (B) the removal or disposal of actual intentional physical waste any portion of the Property by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Borrower Party or any Guarantorits Affiliates after an Event of Default;
(v) the breach misapplication, misappropriation or conversion by any Borrower Party of (A) any insurance proceeds paid by reason of any representationloss, warrantydamage or destruction to the Property (or any portion thereof), covenant (B) any Awards or indemnification provision other amounts received in connection with the Environmental Indemnity Agreement concerning environmental lawsCondemnation of all or a portion of the Property, hazardous substances and asbestos and (C) any indemnification Rents, if any, (D) any Tenant security deposits or Rents collected in advance, if any, (E) any other monetary collateral for the Loan (including, without limitation, any Reserve Funds and/or any portion thereof disbursed to (or at the direction of) Borrower), or (F) any Net Liquidation Proceeds After Debt Service or any distributions or other payments made in respect of Lender with respect thereto in either documentany part of the Properties (or any portion thereof), the Mezzanine A Collateral (or any portion thereof) or the Collateral (or any portion thereof);
(vi) if Borrowerfailure to pay Taxes, charges for labor or materials or other charges that can create liens on any portion of the Property in accordance with the terms and provisions hereof (except (1) to the extent that Mortgage BorrowerBorrower does not have sufficient revenue from the Properties to make such payment, Senior Mezzanine (2) to the extent that sums sufficient to pay such amounts have been deposited in escrow with Mortgage Lender pursuant to the terms of Sections 8.1, 8.2, 8.3, 8.6 or 8.8 of the Mortgage Loan Agreement, as applicable and Mortgage Lender has not made such sums available to Mortgage Borrower or Operating Company fails (3) to obtain Lender’s prior consent the extent that Mortgage Borrower is contesting (or causing Mortgage Borrower to any voluntary intentional Transfer contest) such charges in accordance with the terms and conditions of Section 4.5 hereof (with respect to Taxes) and in accordance with the terms and conditions of Section 4.16 hereof (with respect to Work Charges and/or other trade payables));
(vii) failure to pay Insurance Premiums, to maintain the Policies in full force and effect and/or to provide Lender evidence of the same, in each case, as required by this Agreement, expressly provided herein (except (1) to the extent that Mortgage Borrower does not have sufficient revenue from the Properties to make such payment or (2) to the extent that sums sufficient to pay such amounts have been deposited in escrow with Mortgage Lender pursuant to the terms of Section 8.6 of the Mortgage Loan Agreement or the Mortgages, as applicableand Mortgage Lender has not made such sums available to Mortgage Borrower);
(viiviii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiiix) any tax on the making of the Note or any of the other Loan Documents or any transfer or similar taxes upon the making of the same, but excluding any income, franchise or other similar taxes;
(x) any violation or breach of any applicable law mandating the forfeiture or seizure of the Property (or any portion thereof and/or interest therein);
(xi) any material violation or breach by Mortgage Borrower with respect to any representation, warranty or covenant contained in Article 5 of the Mortgage Loan Agreement (except with respect to Mortgage Borrower or any SPE Component Entity (as defined in the event of:Mortgage Loan Agreement) remaining solvent, maintaining adequate capital or complying with Section 5.1(a)(vii) of the Mortgage Loan Agreement with respect to trade payables or Permitted Equipment Leases (as defined in the Mortgage Loan Agreement) solely (1) to the extent that Mortgage Borrower does not have sufficient revenue from the Properties to make such payment or (2) to the extent that sums sufficient to pay such amounts have been deposited in an escrow for the payment of such amounts with Mortgage Lender pursuant to the terms of Article VIII of the Mortgage Loan Agreement and Mortgage Lender has not made such sums available to Mortgage Borrower);
(xii) (A) Borrowerthe failure of Mortgage Borrower to make any True Up Payment (as defined in the Mortgage Loan Agreement) (except to the extent that Mortgage Borrower does not have sufficient revenue from the Properties to make such payment), Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing failure of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company A Borrower to make any True Up Payment (as defined in the Mezzanine A Loan Agreement) (except to the extent that Mezzanine A Borrower does not have sufficient revenue from the Mezzanine A Collateral to make such payment) or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or the failure of Borrower to make any Guarantor filing an answer consenting True Up Payment (except to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting extent that Borrower does not have sufficient revenue from the Collateral to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Companymake such payment), as applicable;
(xiii) the failure to purchase or voluntary Lien replace (other than Permitted Encumbrancesas applicable) encumbering any of the PropertiesInterest Rate Cap Agreement or Replacement Interest Rate Cap Agreement (as applicable), Senior Mezzanine Collateral or Collateral in each case, as and when required by this Agreementthe terms hereof;
(xiv) any material violation or breach with respect to any representation, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement warranty or the Mortgages. Notwithstanding anything covenant contained in Article 5 (except with respect to the contrary under this Agreement, neither Borrower or any present SPE Component Entity remaining solvent or future Affiliate of Borrower (other than Guarantor, maintaining adequate capital solely to the extent provided under that Borrower does not have sufficient revenue from the GuarantyProperties to make such payments);
(xv) nor any present violation or future shareholderbreach of Section 11.6 or 11.8 hereof;
(xvi) any Property Document Event shall occur;
(xvii) any material violation or breach by Mezzanine A Borrower with respect to any representation, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant warranty or agent covenant contained in Article 5 of or in any the Mezzanine A Loan Agreement (except with respect to Mezzanine A Borrower or any SPE Component Entity (as defined in the Mezzanine A Loan Agreement) remaining solvent or maintaining adequate capital solely to the extent that Mezzanine A Borrower does not have sufficient revenue from the Properties to make such payments);
(xviii) any violation or breach of Section 7(a)(ii), Section 7(a)(iii) or in any person or entity that is or becomes an Affiliate Section 7(b) of any Borrower shall have any personal liability, directly or indirectly, under or in connection with Subordination of Management Agreement;
(xix) the Loan Documents. Neither the negative capital account of any Affiliate failure of Borrower or Manager to make required contributions to the CBA Multiemployer Plan (whether or not such failure results in an Event of Default hereunder); and/or
(xx) the failure of Mortgage Borrower, Borrower or Manager to cooperate with Lender and/or its assignees or designees in transitioning to Lender and/or its assignees or designees any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital liquor licenses with respect to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalIndividual Property.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that:
(i) Borrower fails or fails to cause Mezzanine A Borrower and/or Mortgage Borrower to comply with any Mortgage Loan Cash Management Provisions Mezzanine A Loan Cash Management Provisions and/or the Waived Cash Management Provisions, as applicable, and does not cure such failure within ten (10) days after written notice thereof, (ii) Borrower fails to cause Mortgage Borrower to appoint a new property manager when required to do so pursuant to this Agreement or fails to cause Mortgage Borrower to comply with any limitations on instructing the property manager, each as required by and in accordance with, as applicable, the terms and provisions of, this Agreement and the other Loan Documents; (iii) any representation, warranty or covenant contained in Article 5 hereof is violated or breached which results in the substantive consolidation of Borrower, Mortgage Borrower or any SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) with any other Person that is a debtor in any proceeding under the Bankruptcy Code or any other Creditors Rights Laws; (iv) a Prohibited Transfer occurs, (v) a Bankruptcy Event occurs; (vi) Section 11.1 hereof is violated or breached; or (vii) the Ground Lease is terminated or cancelled or the Renewal Deadline occurs and Lender has not received evidence acceptable to Lender of the renewal of the Ground Lease in accordance with its terms.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender shall The Buyers agree that they do not enforce the liability have and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided hereinwill not have, any judgment in any such claims or causes of action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
(a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to transactions contemplated hereby against any of the Properties which are not delivered to Mortgage Lender upon a foreclosure Sellers’ direct or indirect Affiliates or any of the Sellers’ or their Affiliates’ respective direct or indirect shareholders, members, partners, trustees, directors, principals, officers, employees, agents or contractors or any successors or assigns of any of the Properties or action in lieu thereofforegoing Persons (collectively, the “Seller Parties”), except to the extent that Sellers are so liable hereunder then only to the extent of any such security deposits were applied distributions of proceeds hereunder that are entitled to be clawed back under applicable Law. The Buyers agree to look solely to Sellers’ interest in accordance with the terms Real Property and conditions the proceeds therefrom (including the ability to cause any portion of the Purchase Price that has been distributed to partners or other indirect owners to be clawed back to the extent permitted by applicable Law) and the Seller Affiliate Indemnity (as defined below) for the satisfaction of any liability or obligation of a Seller arising under this Agreement or the transactions contemplated hereby, or for the performance by a Seller of any of the Leases prior covenants or other agreements contained herein and the Buyer further agrees not to the occurrence of the Event of Default that gave rise ▇▇▇ or otherwise seek to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or enforce any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition personal obligation against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents Sellers’ other assets or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor properties or any of the Properties, the Collateral, the Senior Mezzanine Collateral other Seller Parties (or any portion thereof, other than at the request of Lender; their assets or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (xproperties) with respect to Mortgage Borrowerany matters arising out of or in connection with this Agreement or the transactions contemplated hereby. Without limiting the generality of the foregoing provisions, Permitted Indebtedness the Buyers hereby unconditionally and (y) irrevocably waive any and all claims and causes of action of any nature whatsoever that the Buyers may now or hereafter have against, and hereby unconditionally and irrevocably releases and discharges from any and all liability whatsoever, the Seller Parties, other than with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, Sellers to the extent provided under the Guaranty) nor any present or future shareholderfor in this Section 10.1, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with or arising out of this Agreement or the Loan Documentstransactions contemplated hereby. Neither During the negative capital account Limitation Period, Sellers shall ensure that reasonable cash reserves are available until all final adjustments have been made pursuant to this Agreement even if such adjustments occur after the end of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalLimitation Period.
(b) Notwithstanding anything ▇▇▇▇▇▇/Validus Operating Partnership, LP, a Delaware limited partnership (the “Seller Affiliate Indemnitor”), an Affiliate of Sellers, agrees to join this Agreement to provide an indemnity in favor of Buyers and to be jointly obligated with Seller as set forth below (the contrary “Seller Affiliate Indemnity”) to secure Sellers’ post-Closing obligations hereunder as Buyers’ recourse for Sellers’ performance of its obligations under this Agreement or in any document delivered in connection with Closing, for the period of time beginning on the Closing Date through the period ending on the later of (a) twelve (12) months after the Closing Date, (b) the date on which all Claims made within such twelve (12) month period pursuant to this AgreementAgreement have been resolved or otherwise disposed, and (c) with respect to any Landlord Estoppel Certificates and any estoppel certificate signed solely by any Seller in connection with the Ground Lease and/or the 180 Peachtree Condo Documents (it being acknowledged that Buyers shall have no obligation to accept such Seller estoppels in connection with the Ground Lease or the 180 Peachtree Condo Documents), until all obligations there under have been released (and Claims made thereunder have been resolved or otherwise disposed (as applicable, the Note or any of the Loan Documents, Lender “Seller Affiliate Indemnity Survival Period”)). The Seller Affiliate Indemnitor 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 Bankruptcy Code to file a claim jointly and severally liable for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of Sellers’ post-Closing obligations under this Agreement and the Indebtedness owing Closing Documents and the Seller Affiliate Indemnitor shall indemnify, defend and hold the Buyers harmless from any and all Claims and Losses arising out of Sellers’ failure to Lender perform and/or satisfy Sellers’ post-Closing obligations and covenants under this Agreement and the Closing Documents during the Seller Affiliate Indemnity Survival Period. In addition, Seller Affiliate Indemnitor agrees to maintain during the Seller Affiliate Indemnity Survival Period a tangible net worth of at least SIXTY SEVEN MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($67,500,000.00) determined in accordance with generally accepted accounting principles consistently applied, and if such net worth falls below such level, Sellers and/or Seller Affiliate Indemnitor shall within ten (10) Business Days of failing to meet such net worth test, promptly provide a letter of credit for the Loan Documentsbenefit of Buyers, in form and substance, and from a bank, reasonably acceptable to the Buyers.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Carter Validus Mission Critical REIT, Inc.)
Exculpation. (a) Subject to the qualifications belowset forth in this Section 9.3, Lender shall not enforce the liability and obligation of Borrower or any other Loan Party to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrower or any other Loan Party, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents (including, without limitation, the MGM/Mandalay Lease Rents), or any other collateral Collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower and any other Loan Party only to the extent of Borrower’s and any other Loan Party’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower or any other Loan Party in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section 9.3 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower or any other Loan Party as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementMortgages; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of any assignment of leases contained in the Mortgage; or (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower or any other Loan Party in order to fully realize the security granted by each of the Pledge Agreement Mortgages or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; Properties.
(b) Nothing contained herein shall in any manner or (g) constitute a waiver of way release, affect or impair the right of Lender to enforce the liability and obligation of BorrowerBorrower and the other Loan Parties, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation to the extent actually incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurredincurred by Lender) arising out of or incurred in connection with the followingfollowing actions or omissions:
(i) fraud or intentional material and willful misrepresentation by Borrower, Mortgage any other Loan Party, Guarantor, or any Affiliate of Borrower, Senior Mezzanine Borrowerany other Loan Party or Guarantor Controlled by ▇▇▇▇▇, Operating Company MGP or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents willful misconduct by Borrower, Mortgage Borrowerany other Loan Party, Senior Mezzanine BorrowerGuarantor, Operating Company or any Guarantor of any funds Affiliate of Borrower, Senior Mezzanine any other Loan Party or Guarantor Controlled by ▇▇▇▇▇, MGP or Guarantor, that results in physical damage or waste to the Property;
(iii) the removal or disposal by, or on behalf, of Borrower, Mortgage Borrower any other Loan Party, Guarantor, or Operating Companyany Affiliate of Borrower, includingany other Loan Party or Guarantor Controlled by ▇▇▇▇▇, without limitationMGP or Guarantor, of any portion of the Property during the continuance of an Event of Default;
(iv) the misappropriation or conversion by any Individual Borrower, any other Loan Party, Guarantor or any Affiliate of such Individual Borrower, any other Loan Party or Guarantor Controlled by ▇▇▇▇▇, MGP or Guarantor of (A) any RevenuesInsurance Proceeds paid by reason of a Casualty, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of any Individual Property, (DC) any Rents or security deposits (or any item during the continuance of Revenue, from whatever source) following an Event of Default, or (ED) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(ivv) any act of actual intentional physical waste a material breach by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor;
other Loan Party or material failure by Borrower or any Loan Party to comply with the covenants set forth in Section 5.1.25(a) or (vb) hereof (provided, however that (1) there shall be no liability hereunder (x) for trade payables or other operational Debt incurred in the ordinary course of business or as may otherwise be permitted in accordance with this Agreement or for the failure to pay such trade payables or operational debt as a result of insufficient funds having been generated from the Property for Borrower’s or any Loan Party’s business operations or (y) if reserve funds held by Lender and specifically allocated for such amount have not been made available to Borrower by Lender to pay such outstanding amounts, shall not, in each case, in and of itself, cause any liability under this Section 9.3(b)(v) and (2) the breach of foregoing shall not require Borrower’s equityholders to make any representation, warranty, covenant additional capital contributions or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentloans to Borrower);
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior written consent to any financing or other voluntary intentional Transfer as Lien encumbering any Individual Property, if such consent is required by this Agreement, in accordance with the Mortgage applicable provisions of the Loan Agreement or the Mortgages, as applicableDocuments;
(vii) any security depositsvoluntary termination, advance deposits or any other deposits collected with respect to any voluntary, material modification of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except MGM/Mandalay Lease (to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior Property is subject to the occurrence MGM/Mandalay Lease) by Borrower without Lender’s prior written consent in violation of the Event of Default that gave rise to such foreclosure or action in lieu thereofthis Agreement;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code if Borrower or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company Loan Party fails to obtain Lender’s prior written consent to any voluntary Indebtedness Sale or Pledge of the Property or a Transfer of the ownership interests in Borrower or the other Loan Parties, in each case, to the extent required by Section 5.2.9 hereof, and in each case, excluding Permitted Transfers, Permitted Encumbrances and any other Lien expressly permitted under the Loan Documents. For the avoidance of doubt, a Transfer resulting from the exercise of Lender’s rights under the Loan Documents or the Mezzanine Lender’s rights under the Mezzanine Loan Documents or the consummation of any remedial or enforcement action by the Lender or any holder of the Mezzanine Loan of the collateral for the Loan or the Mezzanine Loan, including, without limitation, any foreclosure, deed-in-lieu or assignment in lieu of foreclosure and the exercise of any rights of Lender or the Mezzanine Lender under the Mortgages or any Pledge Agreement, including, without limitation, any right to vote any pledged securities or any right to replace officers and directors of any Person (collectively, a “Foreclosure”), shall not be a Transfer in violation of Section 5.2.9 hereof; and
(ix) to the extent that (A) the Property is not subject to the MGM/Mandalay Lease and (B) Borrower obtains a PLL Policy that does not run through the Required PLL Period and Borrower fails to renew, replace or extend such PLL Policy through the Required PLL Period as required under Section 6.1(a)(xiii), any liability pursuant to Section 4 of the Environmental Indemnity (other than Section 4(a)(l) thereof) that first arises after the expiration of such PLL Policy and that would have otherwise been covered by the PLL Policy had it been renewed, replaced or extended through the Required PLL Period, provided, however that there shall be no liability hereunder (x) with respect to Mortgage Borrowerfor any amounts in excess of the applicable coverage amounts of the PLL Policy had the PLL Policy been renewed, Permitted Indebtedness replaced or extended through the Required PLL Period and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering for any of amounts which are recovered from the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalPLL Policy.
(bc) Notwithstanding anything to the contrary in this Agreement, the Note or 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 Bankruptcy Code to file a claim against Borrower for the full amount of the Indebtedness Debt secured by the Mortgages or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (ii) the Debt shall be fully recourse to Borrower in the event of: (A) any Individual Borrower or Principal filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition by any Person against any Individual Borrower or Principal under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law in which any Individual Borrower, Principal or Guarantor or any Affiliate of Borrower, Principal or Guarantor Controlled by ▇▇▇▇▇, MGP or Guarantor colludes with, or otherwise assists, such Person, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower or Principal; (C) any Individual Borrower, Principal or Guarantor or any Affiliate of Borrower, Principal or Guarantor Controlled by ▇▇▇▇▇, MGP or Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against any Individual Borrower or Principal, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) any Individual Borrower or Principal, consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for any Individual Borrower or Principal, or any portion of the Property; or (E) the Mortgage or other Loan Document being deemed a fraudulent conveyance or preference or otherwise being deemed void pursuant to any principles limiting the rights of creditors, whether such claims, demands or assertions are made under the Bankruptcy Code, including, without limitation, under Sections 544, 547 or 548 thereof, or under any applicable state fraudulent conveyance statues or similar laws.
Appears in 1 contract
Sources: Loan Agreement (MGM Growth Properties Operating Partnership LP)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral Collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral Collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section 11.3 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (ciii) affect the validity or enforceability of any of the Loan Documents or any guaranty or indemnity (including, without limitation, the Guaranty and the Environmental Indemnity) or similar instrument made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; (fvi) impair the right of Lender to enforce the Environmental Indemnity; (vii) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security Collateral granted by any of the Pledge Loan Documents, including, without limitation, by the Security Instrument, or by the Assignment of Leases, or by this Agreement (including with respect to the Accounts Collateral) or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (gviii) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage BorrowerSPE Component Entity, Senior Mezzanine Borrowerany Guarantor, Operating Company or any Guarantor Affiliate of any of the foregoing, or any of their respective agents or representatives, misappropriates or misapplies any (A) Rents, or (B) funds disbursed from the Reserve Funds, or (C) Insurance Proceeds, or (D) Awards or other amounts received in connection with the execution and delivery Condemnation of the Loan Documents and/or the Loanall or a portion of any Property;
(ii) To the misappropriationextent not paid by Lender pursuant to the terms of Section 9.2 hereof, conversion Borrower’s failure to pay Property Taxes or misapplication Other Charges when the same become due and payable, in contravention accordance with the terms of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateralthis Agreement;
(iii) Borrower’s failure to (A) obtain and maintain the misappropriationPolicies in accordance with Section 7.1 hereof, conversion (B) pay Insurance Premiums when the same become due and payable, in accordance with the terms of this Agreement or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor (C) pay the deductible amount of any security deposits or Rents paid more than one (1) month in advancePolicy;
(iv) Borrower’s failure to pay charges for labor or materials or other charges that can create Liens on the Property, in accordance with the terms of this Agreement;
(v) the removal or disposal of any portion of the Personal Property by Borrower, SPE Component Entity, any Guarantor, or any Affiliate of any of the foregoing, without replacing such Personal Property with Personal Property of the same utility and of the same or greater value;
(vi) any intentional act of actual intentional physical waste by Borrower, Mortgage BorrowerSPE Component Entity, Senior Mezzanine Borrowerany Guarantor, Operating Company any Affiliate of any of the foregoing or any Guarantorof their respective agents or representatives;
(vvii) any fees or commissions being paid by Borrower to SPE Component Entity, any Guarantor or any Affiliate of any of the foregoing in violation of the terms of this Agreement, the Note, the Security Instrument or the other Loan Documents;
(viii) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Loan Documents concerning environmental laws, hazardous substances Environmental Laws and asbestos Hazardous Substances and any indemnification of Lender with respect thereto in either documentany Loan Document;
(viix) if Borrower’s, SPE Component Entity’s or any Guarantor’s failure to comply with the terms and provisions of Section 5.9, Section 11.1, Section 11.2, Section 11.5 or Section 11.6 hereof;
(x) Borrower’s failure to pay any cost or expense of Lender in connection with the enforcement of its rights and remedies hereunder or under any other Loan Document (including, without limitation, all transfer and recording taxes due to any Governmental Authority in the event of a foreclosure of the Property, deed in lieu of foreclosure or other transfer of the Property to Lender or to Lender’s designee);
(xi) Borrower or SPE Component Entity violates or breaches any of the material terms and conditions of Article VIII hereof; or
(xii) Borrower fails to make any True Up Payment; or
(xiii) in connection with the Loan or the Property, Borrower, Mortgage SPE Component Entity, any Guarantor, any Affiliate of any of the foregoing, or any of their respective agents or representatives, engages in any action constituting fraud, intentional misrepresentation or willful misconduct; or
(xiv) Any violation or breach of Section 4.1.44 Property Document Representations, Section 5.26 Property Document Covenants hereof, or any Property Document Event; or
(xv) Borrower’s failure to resolve the issues described in paragraph 7 of that certain estoppel letter dated September 9, Senior Mezzanine 2013 prepared by Walgreen Co for the benefit of Borrower and Lender; provided, however, at such time as Borrower delivers to Lender a clean estoppel certificate executed by Walgreen Co for Store #6484 @ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, that provides the improvements and work required under the terms of the lease to be done by Borrower have been completed to Walgreen Co’s satisfaction, Borrower’s liability under this subsection (xv) shall cease and be of no further effect.
(b) Notwithstanding the foregoing or Operating Company fails anything to obtain Lender’s prior consent the contrary in this Agreement or any of the other Loan Documents, (A) nothing herein shall be deemed to be a waiver of any voluntary intentional Transfer as required by right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Code to file a claim for the full amount of the Debt or to require that all Collateral shall continue to secure all of the Debt owing to Lender in accordance with this Agreement, the Mortgage Note, the Security Instrument and the other Loan Agreement or Documents and (B) the Mortgagesagreement of Lender not to pursue recourse liability as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, as applicable;and the Debt shall be fully recourse to Borrower, in the event that:
(viii) any security deposits, advance deposits Borrower violates or any other deposits collected with respect to breaches any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofArticle VI hereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor filing SPE Component Entity files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; Creditors Rights Laws, (B) an Affiliate, officer, director, or representative which controls Borrower or SPE Component Entity directly or indirectly, files, or joins in the filing of of, an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor SPE Component Entity under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other PersonCreditors Rights Laws, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company solicits or any Guarantor soliciting or causing causes to be solicited solicited, or otherwise colludes with, petitioning creditors for any involuntary petition against Borrower, Operating Company Borrower or any Guarantor SPE Component Entity from any Person; , (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor filing SPE Component Entity files an answer consenting to to, or otherwise acquiescing in in, or joining in in, any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal Creditors Rights Laws, or state bankruptcy solicits or insolvency law; causes to be solicited, or otherwise colludes with, petitioning creditors for any involuntary petition from any Person, (D) Borrowerany Affiliate, Mortgage Borrowerofficer, Senior Mezzanine Borrowerdirector, Operating Company or any Guarantor consenting to representative which controls Borrower or acquiescing in SPE Component Entity consents to, or joining in acquiesces in, or joins in, an application for the appointment of a custodian, receiver, trustee, or examiner for BorrowerBorrower or SPE Component Entity or the Property, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor making SPE Component Entity makes an assignment for the benefit of creditors (other than Lender)creditors, or admittingadmits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due, (F) there is a substantive consolidation of any Restricted Party with any other entity in connection with any proceeding under the Bankruptcy Code or any other Creditors Rights Laws, (G) any Restricted Party contests or opposes any motion made by Lender to obtain relief from the automatic stay or seeking to reinstate the automatic stay in the event of any proceeding under the Bankruptcy Code or any other Creditors Rights Laws involving Borrower, and (H) Lender receives less than the full value of its claim in any proceeding under the Bankruptcy Code or any other Creditors Rights Laws, any Guarantor or any of its Affiliates receives an equity interest or other financial benefit of any kind as a result of a “new value” plan or equity contribution;
(ixiii) if Borrower, Senior Mezzanine Borrower SPE Component Entity, any Guarantor, or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 Affiliate of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Propertiesforegoing contests, Senior Mezzanine Collateral delays, interferes with or Collateral as required by this Agreementfrustrates, or fails to cooperate with, Lender’s exercise of remedies provided under the Senior Mezzanine Loan Agreement, Documents after the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate occurrence of Borrower an Event of Default (other than Guarantor, except to the extent provided under the Guaranty) nor that a court of competent jurisdiction makes a final determination that Borrower, SPE Component Entity, any present Guarantor or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with of the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore foregoing had a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against valid legal basis for any such negative capital account or obligation to restore, contribute or loan capitalaction).
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (AmREIT, Inc.)
Exculpation. (a) Subject to the qualifications below, the liabilities and obligations of Borrower under the Note, this Agreement, the Mortgage and the other Loan Documents are and shall be non-recourse, and Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ sue for, seek or demand any deficiency judgment against Borrower Borro▇▇▇ in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional material misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion intentional waste or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any material representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either documentdocument subject, however, to any limitations set forth in such documents;
(iv) the removal or disposal by Borrower of any portion of the Property in violation of the Loan Documents after the occurrence and during the continuance of an Event of Default;
(v) the misapplication in violation of the Loan Documents or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Property, or (C) any Rents following the occurrence and during the continuance of an Event of Default;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(xvii) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s 's prior written consent to any voluntary Indebtedness lien (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrancessubordinate financing) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the MortgagesProperty. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Indebtedness Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) Borrower violates any of the covenants set forth in Section 4.1.30 of this Agreement and as a result thereof, the assets of Borrower are ordered pursuant to a final, non-appealable order to be substantively consolidated with those of any other Person by a court having jurisdiction over a case filed under the Bankruptcy Code, Title 11 of the United States Code; (ii) Borrower fails to obtain Lender's prior written consent to any subordinate financing encumbering the Property; (iii) Borrower fails to obtain Lender's prior written consent to any assignment, transfer, or conveyance of the Property or any interest therein as required by the Mortgage or hereunder; or (iv) Borrower files a voluntary petition under the Bankruptcy code or any other Federal or state bankruptcy or insolvency law.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender or Trustee may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder or Trustee to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents following an Event of Default, or any other collateral given to Lender or Trustee pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents following an Event of Default and in any other collateral given to LenderLender or Trustee, and LenderLender or Trustee, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender or Trustee to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender or Trustee thereunder; (d) impair the right of Lender or Trustee to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any of the Assignment of Leases following an Event of Default; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence Trustee commencing any other appropriate action or proceeding in order for Lender or Trustee to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender or Trustee to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender or Trustee (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:;
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) material physical waste of the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advanceProperty;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(v) the removal or disposal of any portion of the Property after an Event of Default;
(vi) if Borrowerthe misapplication or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, Mortgage Borrower, Senior Mezzanine damage or destruction to the Property which are not applied by Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by in accordance with this Agreement, (B) any awards or other amounts received in connection with the Mortgage Loan Agreement condemnation of all or a portion of the MortgagesProperty which are not applied by Borrower in accordance with this Agreement, as applicableor (C) any Rents following an Event of Default;
(vii) failure to pay charges for labor or materials or other charges that can create liens on any portion of the Property; or
(viii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;.
(ix) if the breach of Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails ’s indemnification obligation pursuant to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x10.13(b) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) hereof with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgagesa Purchase Price Adjustment. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) the Debt shall be fully recourse to the Borrower and (B) 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 Indebtedness Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents in the event that the (I) first full monthly payment under the Note is not paid within five (5) days of notice that such payment is late (provided, however, that such grace period relates only to the recourse trigger described in this paragraph), or (II) failure of Borrower to permit on-site inspections of the Property subject to the rights of the Major Tenants under their respective Leases and any applicable cure period set forth in the Loan Documents, 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 Major Tenants pursuant to their respective Leases that has not been delivered to Borrower, provided Borrower has requested such financial information from the Major Tenants, or to comply with Section 4.1.30 hereof, or (III) failure of Borrower to obtain Lender’s prior written consent to any subordinate financing or other voluntary lien encumbering the Property, or (IV) failure of Borrower to obtain Lender’s prior written consent to any assignment, transfer or conveyance of the Property, or any portion thereof, or any interest therein as required by this Agreement. Notwithstanding the provision set forth in clause (III) of this paragraph, a voluntary lien other than a lien securing an extension of credit filed against the Property shall not constitute a recourse trigger for purposes of this paragraph provided such lien (A) is fully bonded to the satisfaction of Lender and discharged of record within ninety (90) days of filing, or (B) within such ninety (90) day period, Lender receives affirmative title insurance from the title insurance company insuring the lien of the Mortgage that such lien is subject and subordinate to the lien of the Mortgage and no enforcement action is commenced by the applicable lien holder.
Appears in 1 contract
Sources: Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents, Net Proceeds and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with and Borrower shall be personally liable for the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(viiv) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower the removal or Operating Company fails to obtain Lender’s prior consent to disposal of any voluntary intentional Transfer as required by this Agreement, portion of the Mortgage Loan Agreement or the Mortgages, as applicableProperty after an Event of Default;
(viiv) the misapplication or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, or (C) any Rents following an Event of Default or any Rents collected for more than one month in advance to the extent such Rents or any other payments in respect of the Leases and other income of the Property or any other collateral are not applied to the costs of maintenance and operation of the Property and to the payment of taxes, lien claims, insurance premiums, Debt Service and other amounts due under the Loan Documents;
(vi) misappropriation or conversion of any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(vii) Borrower’s failure to maintain insurance as required by this Agreement or to pay any taxes or assessments affecting the Property as required by this Agreement;
(viii) misappropriation, removal or disposal (except in the event of:
ordinary course of Borrower’s business) of any Personal Property (Aas defined in the Mortgage) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing affixed to the Property which constitutes a voluntary petition under portion of the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application collateral for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueLoan;
(ix) if Borrower, Senior Mezzanine Borrower failure to pay any charges when due for labor or Mortgage Borrower fails materials that create Liens on the Property (to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth the extent net cash flow from the Property is available for payment of such charges) unless the same are being contested in Section 4.1.30 of accordance with this Agreement; and;
(x) if Borrower, Mortgage Borrower, Senior Mezzanine failure to restore physical waste of the Property; or
(xi) Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company)appoint a new property manager upon the request of Lender after an Event of Default, as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Propertiesrequired by, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or and in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection accordance with the Loan Documentsterms and provisions of, this Agreement and the Mortgage. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (i) Borrower fails to obtain Lender’s prior consent to any subordinate financing or other voluntary Lien encumbering the Property (other than Permitted Encumbrances); (ii) Borrower fails to obtain Lender’s prior consent to any Prohibited Transfer as required by the Mortgage or this Agreement; (iii) Borrower files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (iv) an Affiliate which controls, directly or indirectly, Borrower files, or joins in the filing of, an involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (v) Borrower files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (vi) any Affiliate which controls Borrower consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Property; (vii) Borrower makes an assignment for the benefit of creditors, or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; or (viii) Borrower defaults in the observance or performance of any of its obligations under Section 3.1.24.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications belowExcept as otherwise expressly provided in this Section 9.4, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in this Agreement, the Note or the Pledge Agreement or any other Loan Document by any action or proceeding against Borrower or any Exculpated Party, except that Lender may bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Lender to enforce and realize upon this Agreement, the Note, the Pledge Agreement, the other Loan Documents, and the Collateral and any other collateral for the Debt in which a security interest is granted to Lender by this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Collateral, and in any other collateral given in which a security interest is granted to Lender, and Lender, Lender by accepting the Note, this Agreement, the Pledge Agreement and or the other Loan Documents. Lender, by accepting this Agreement, the Note and the Pledge Agreement, agrees that it shall not not, except as otherwise expressly provided in this Section 9.4, ▇▇▇ for, seek or demand any deficiency or other money judgment against Borrower Borrower, any direct or indirect member, manager, shareholder, partner, beneficiary or other owner of beneficial ownership interests in Borrower, or any affiliate, director, officer, employee, trustee or agent of any of the foregoing (each, an “Exculpated Party” and, collectively, the “Exculpated Parties”) in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreement or the other Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge AgreementAgreement (subject, however, to the aforesaid limitation on Lender’s right to ▇▇▇, seek or demand a deficiency or other money judgment against Borrower or any other Exculpated Party); (ciii) affect the validity or enforceability of any indemnity (including, without limitation, the Environmental Indemnity), guaranty, master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Pledge Agreement, or the other Loan Documents (subject, however, to any exculpatory or any of the rights and remedies of Lender thereundernon-recourse provisions appearing in such indemnity, guaranty or similar instrument); (div) impair the right of Lender to obtain the appointment of a receiver; (ev) [intentionally omitted]; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of impair the right of Lender to enforce the liability provisions of Sections 4.1.8, 4.1.28, 5.1.9 and obligation of 5.2.8 hereof (subject, however, to the aforesaid limitation on Lender’s right to ▇▇▇, seek or demand a deficiency or other money judgment against Borrower or any other Exculpated Party which such limitation, with respect to Borrower, by money shall not apply to the Environmental Indemnity); or (vii) impair the right of Lender to obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower if and to the extent necessary to obtain any insurance proceeds or condemnation awards to which Lender would otherwise be entitled under this Agreement; provided however, that Lender shall only be entitled to enforce such judgment to the extent of the insurance proceeds and/or condemnation awards.
(b) Notwithstanding the provisions of this Section 9.4 to the contrary, Borrower and Guarantor pursuant to the Guaranty (but not any other Exculpated Parties) shall be personally liable to Lender for any actual lossLosses Lender incurs due to the following (collectively, damagethe “Recourse Events”):
(i) any fraud committed by Borrower, costMezzanine A Borrower, expense, liability, claim Mortgage Borrower or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out any of their Affiliates or agents in connection with the following:
(i) fraud Loan, the Mezzanine A Loan or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriationany intentional and material misrepresentation by Borrower, conversion Mezzanine A Borrower or misapplication Mortgage Borrower in contravention any of the Loan Documents, the Mezzanine A Loan Documents by Borrower, or the Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralLoan Documents;
(iii) the misappropriation, conversion or misapplication misappropriation by Borrower, Mortgage Mezzanine A Borrower, Senior Mezzanine Borrower, Operating Company Mortgage Borrower or any Guarantor of their Affiliates or agents of any funds (including misappropriation of Rents, security deposits or Rents paid more than one (1) month in advanceand/or Net Proceeds);
(iv) any act Transfer, Sale or Pledge of actual intentional physical waste by Borrowerthe Property, Mortgage Borrowerthe Collateral, Senior the Mezzanine Borrower, Operating Company A Collateral or any Guarantorinterest of a Restricted Party therein, and in each case, which is prohibited hereunder;
(v) the intentional and material breach of any representation, warranty, covenant or indemnification provision representation in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto or in either documentSections 4.1.39 or 5.1.19 hereof;
(vi) if any voluntary filing by Borrower, Mezzanine A Borrower, Mezzanine A Principal, Mortgage Borrower, Senior Mezzanine Borrower Mortgage Principal or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition Principal under the Bankruptcy Code or any other Federal federal or state bankruptcy or insolvency law; ;
(Bvii) the any involuntary filing of an involuntary petition against Borrower, Mezzanine A Borrower, Mezzanine A Principal, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Mortgage Principal or any Guarantor Principal under the Bankruptcy Code or any other Federal federal or state bankruptcy or insolvency law by any Person in which acting at the request or under the direction of Borrower, Mezzanine A Borrower, Mortgage Borrower or any of their Affiliates or agents;
(viii) Mezzanine A Borrower, Mezzanine A Principal, Mortgage Borrower, Senior Mezzanine BorrowerMortgage Principal, Operating Company Borrower or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting Principal consents to or otherwise acquiescing acquiesces in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining joins in an application for the appointment of a custodian, receiver, trustee, trustee or examiner for Mezzanine A Borrower, Mezzanine A Principal, Mortgage Borrower, Senior Mezzanine BorrowerMortgage Principal, Operating Company Borrower or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Principal or any portion thereofof the Property, other than at the request of Lender; Mezzanine A Collateral or the Collateral;
(Eix) Borrower’s making a distribution to its equity owners after the occurrence and during the continuance of an Event of Default;
(x) Mezzanine A Borrower, Mezzanine A Principal, Mortgage Borrower, Senior Mezzanine BorrowerMortgage Principal, Operating Company Borrower or any Guarantor making Principal makes an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;creditors; or
(ixxi) if any intentional physical waste of the Property or the Mezzanine A Collateral by Mezzanine A Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if BorrowerA Principal, Mortgage Borrower, Senior Mezzanine Mortgage Principal, Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note Principal or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) their Affiliates or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documentsagents.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Archstone Smith Operating Trust)
Exculpation. (a) Subject Notwithstanding anything to the contrary contained in this Agreement, the Note, the Mortgage or the other Loan Documents but subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage as long as Lender shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower if necessary in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(viiv) if Borrower, Mortgage Borrower, Senior Mezzanine the removal or disposal by Borrower or Operating Company fails any Affiliate of Borrower of any portion of the Property after an Event of Default (unless otherwise permitted under the Loan Documents);
(v) the misapplication or conversion by Borrower of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to obtain Lender’s prior consent to any voluntary intentional Transfer as required the Property, which are not applied by Borrower in accordance with this Agreement, (B) any Awards received in connection with a Condemnation of all or a portion of the Mortgage Loan Agreement Property, which are not applied by Borrower in accordance with this Agreement, (C) any Rents following an Event of Default, (D) any Rents paid more than one month in advance, or (E) any amounts paid to Borrower by tenants of the MortgagesProperty specifically for Taxes and Other Charges, as applicablewhich are not applied by Borrower to pay such Taxes and Other Charges or in accordance with this Agreement;
(vi) failure to pay charges incurred by Borrower or any Affiliate of Borrower for labor or materials that can create Liens on any portion of the Property, subject to any right to contest such charges pursuant to the terms of this Agreement; and
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;.
(viiii) in the event of:
(Aa) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing by any Person of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trusteewhich Borrower colludes with, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender)otherwise assists such Person, or admitting, in writing solicits or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed causes to be the property or an asset of solicited petitioning creditors for any involuntary petition against Borrower (or from any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.Person;
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, or in the CollateralProperties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementMortgages; (c) affect the validity or enforceability of the Guaranty or any Guaranty made in connection with the Loan Environmental Indemnity or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by each of the Pledge Agreement Mortgages or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperties; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees fees, costs and costs expenses reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any SPE Constituent Entity or any Guarantor of their respective Affiliates in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriationgross negligence or willful misconduct of Borrower, conversion any SPE Constituent Entity or misapplication in contravention any of their respective Affiliates;
(iii) the failure to return, or to reimburse Lender for, all Personal Property removed from any Individual Property by or on behalf of Borrower and not replaced with Personal Property of the Loan Documents same utility and of the same or greater value;
(iv) material physical waste of any Individual Property by Borrower any SPE Constituent Entity or any of their respective Affiliates;
(v) the removal or disposal of any portion of any Individual Property during the continuance of an Event of Default;
(vi) the misapplication or conversion by Borrower, Mortgage Borrowerany SPE Constituent Entity, Senior Mezzanine Borrower, Operating Company Guarantor or any Guarantor of any funds their respective Affiliates of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any RevenuesInsurance Proceeds paid by reason of any Casualty or proceeds of the PLL Policy, (B) any Net Liquidation Proceeds Awards or Insurance Proceeds, (C) any Awards other amounts received in connection with a Condemnation, (DC) any Rents or security deposits (or any item during the continuance of Revenue, from whatever source) following an Event of Default, or (ED) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(ivvii) failure to pay charges for labor or materials or other charges or judgments that can create Liens on any act portion of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any GuarantorIndividual Property to the extent that Borrower has sufficient revenue from such Individual Property with which to make such payment;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(viiviii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Individual Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties such Individual Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiiix) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company breach by Borrower or any Guarantor filing a voluntary petition under the Bankruptcy Code or SPE Constituent Entity of any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 or Section 4.1.38 or failure by Borrower or any SPE Constituent Entity to comply with any covenant set forth in Section 5.1.29 hereof (other than to the extent relating to a failure to comply, on a prospective basis only, with clause (xiii) of this Agreementthe definition of “Special Purpose Entity” in Section 1.1); and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalintentionally deleted.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Mortgages or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan
(a) Borrower or any SPE Constituent Entity filing a voluntary petition under the Bankruptcy Code; (b) the filing of an involuntary petition against Borrower or any SPE Constituent Entity under the Bankruptcy Code in which Borrower, any SPE Constituent Entity or Guarantor colludes with, or otherwise assists such Person, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower or any SPE Constituent Entity from any Person; (c) Borrower or any SPE Constituent Entity filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code; (d) Borrower or any SPE Constituent Entity consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any SPE Constituent Entity or any Individual Property (or portion thereof); (e) Borrower or any SPE Constituent Entity making an assignment for the benefit of creditors, or admitting in any legal proceeding, its insolvency or inability to pay its debts as they become due, unless such statements are compelled and required by law and otherwise true and correct; or (f) Borrower or any SPE Constituent Entity seeking substantive consolidation in connection with a proceeding under the Bankruptcy Code, or under federal, state or foreign insolvency law involving Borrower, any SPE Constituent Entity, or any respective Affiliate thereof; (ii) if Borrower encumbers any Individual Property (or causes any Individual Property to be encumbered) by any Lien (other than a Permitted Encumbrance) without Lender’s prior written consent; or (iii) if Borrower, any SPE Constituent Entity, Guarantor or any respective Affiliate fails to obtain Lender’s prior written consent to any Transfer in any case in which such consent is required to be obtained pursuant to Section 5.2.10 hereof (provided, however, that a Transfer by reason of a foreclosure (or deed-in-lieu or assignment deed-in-lieu thereof) by Lender of the collateral for the Loan Documentsshall not be deemed a Transfer in violation of Section 5.2.10 hereof).
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize on any security given by Borrower in connection with the security granted by the Pledge Agreement Loan or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateralsuch security; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention willful misconduct of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received guarantor in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralLoan;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(iv) the wrongful removal or destruction of any portion of the Property after an Event of Default that adversely affects the value of the Property;
(v) the misapplication or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any awards or other amounts received in connection with the condemnation of all or a portion of the Property, or (C) any Rents following an Event of Default;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower failure to pay charges for labor or Operating Company fails to obtain Lender’s prior consent to materials or other charges that can create Liens on any voluntary intentional Transfer as required by this Agreement, portion of the Mortgage Loan Agreement or the Mortgages, as applicableProperty;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereofLeases;
(viii) Borrower's indemnifications of Lender set forth in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueSection 9.2 hereof;
(ix) if Borrowerthe first full monthly payment of principal and interest under the Note is not paid when due; or
(x) failure of Borrower to (A) permit on-site inspections of the Property, Senior Mezzanine Borrower or Mortgage Borrower fails to (B) provide financial information, (C) maintain its status as a Special Purpose Entity single purpose entity or breaches any material representation or warranty set forth in Section 4.1.30 (D) appoint a new property manager upon the request of this Agreement; and
(x) if BorrowerLender after an Event of Default, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral each as required by this Agreementby, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or and in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection accordance with the Loan Documentsterms and provisions of, this Agreement and the Mortgage. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.Lender
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of any Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against such Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in any Property, the Collateral, Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against such Borrower only to the extent of such Borrower’s interest in each Property, in the Collateral Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not ▇▇▇ for, seek or demand any deficiency judgment against such Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name any Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreementany Mortgage; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of any Assignment of Leases; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgages or to exercise its remedies against all of the Collateralany Property; or (gvii) constitute a waiver of the right of Lender to enforce the liability and obligation of any Borrower, by money judgment or otherwise, to the extent of any actual loss, actual damage, out-of-pocket cost, out-of-pocket expense, liability, claim or other obligation actually incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of such Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
(ia) fraud or intentional misrepresentation by any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any SPE Party or any Guarantor in connection with the execution and delivery of the Loan Documents and/or obtaining the Loan;
(b) intentional physical waste of any Property or any material portion thereof;
(c) misappropriation of any (i) Proceeds paid by reason of any Insured Casualty, (ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards Award received in connection with a Condemnation, Condemnation or (Diii) any Rents or security deposits (proceeds from any sale of any Property or any item portion thereof received by any Borrower or any of Revenueits Affiliates;
(d) all Rents of each Property received or collected by the Borrowers after an Event of Default and not applied to payment of Principal, payment of interest due under the Note, payment of other sums due in respect of the Loan or payment of actual operating expenses of the Properties (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or similar judicial proceeding in which the Borrowers are legally prevented from whatever sourcedirecting the disbursement of such sums);
(e) misappropriation (including failure to turn over to Lender promptly following an Event of Default) of tenant security deposits and rents collected in advance, or (E) any distribution or other payments made in connection with any part of funds held by the Collateral or Senior Mezzanine CollateralBorrowers for the benefit of another party;
(iiif) the misappropriationfailure to pay Taxes unless the Borrowers are contesting the same and only if and to the limited extent that cash flow from the Properties is sufficient to pay such Taxes and has not otherwise been applied to the payment of amounts due in respect of the Loan or operating expenses; provided that the Borrowers shall not, conversion or misapplication by Borrowerin any event, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor be liable to the extent funds to pay such amounts are available in the Cash Trap Reserve Subaccount and Lender failed to disburse same to the Borrowers pursuant to the terms and conditions of any security deposits or Rents paid more than one (1) month in advanceSection 3.2.2;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(vg) the breach of any representation, warranty, covenant or indemnification provision in the any Loan Document concerning Environmental Indemnity Agreement concerning environmental lawsLaws or Hazardous Substances, hazardous substances including Sections 4.21 and asbestos 5.8, and any indemnification clauses (viii) through (xi) of Lender with respect thereto in either documentSection 5.30;
(vih) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower failure to pay charges for labor or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required materials or other charges for work performed by this Agreement, or at the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure direction of any Borrower that can create Liens on any portion of any Property unless such charges are the Properties subject of a bona fide dispute in which the Borrowers are contesting the amount or action in lieu thereof, except validity thereof and only to the extent any that cash flow from the Properties is sufficient to pay such security deposits were charges and has not otherwise been applied to the payment of amounts due in accordance with the terms and conditions of any respect of the Leases prior to the occurrence Loan or operating expenses; or
(i) a breach of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty covenants set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness 5.13 (other than (xthose regarding solvency or capital adequacy) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present such breach by itself or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant together with one or agent more other breaches of or in any such covenants makes it reasonably likely that a Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection would be substantively consolidated with the Loan Documentsanother Person. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note Agreement or any of the Loan Documents, (A) 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 Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender Debt in accordance with the Loan Documents, and (B) Lender’s agreement not to pursue personal liability of any Borrower as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Debt shall be fully recourse to each Borrower in the event that one or more of the following occurs (each, a “Springing Recourse Event”): (i) an Event of Default described in Section 8.1(d) shall have occurred or (ii) the occurrence of any condition or event described in either Section 8.1(f) or Section 8.1(g) and, with respect to such condition or event described in Section 8.1(g), any Borrower, any SPE Party, Guarantor or any Affiliate of any of the foregoing Controlled by GKK OP consents in writing to, aids, solicits or otherwise cooperates or colludes to cause such condition or event or fails to file a motion opposing such condition or event and such condition or event occurs.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; providedPROVIDED, howeverHOWEVER, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention willful misconduct of Borrower (except that this clause (ii) shall not apply to any failure to make payments with respect to the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralLoan);
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental lawsIndemnity;
(iv) the removal or disposal by Borrower or any Affiliate of Borrower of any portion of the Property after notice to Borrower of an Event of Default;
(v) the misapplication or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, hazardous substances and asbestos and damage or destruction to the Property, (B) any indemnification Awards or other amounts received in connection with the Condemnation of Lender with respect thereto in either documentall or a portion of the Property, or (C) any Rents following notice to Borrower of an Event of Default;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine 's failure to pay charges for labor or materials or other charges for work performed by or on behalf of Borrower that can create a mechanics' lien on any portion of the Property (unless Borrower is negotiating such charges in good faith or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by is contesting such lien in accordance with this Agreement) if the Property generates sufficient funds to make such payments after payment of amounts due under the Loan and the Mezzanine Loan (including, without limitation, payments of the Mortgage Loan Agreement or the Mortgages, as applicableReserve Funds) and other Operating Expenses;
(vii) any security deposits, advance deposits or any other deposits collected by Borrower with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) Borrower's indemnification of Lender set forth in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueSection 9.2 hereof;
(ix) if Borrower, Senior Mezzanine the failure of Borrower or Mortgage to appoint a new property manager upon the request of Lender after notice to Borrower fails of an Event of Default as required pursuant to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in the last sentence of Section 4.1.30 7.3 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine the failure of Borrower or Operating Company to direct any Tenant to pay its Rent in accordance with the Cash Management Agreement.
(i) Borrower fails to obtain Lender’s 's prior consent to any subordinate financing or other voluntary Lien (other than a Permitted Encumbrance) encumbering Borrower's interest in the Property; or
(ii) Borrower fails to obtain Lender's prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrowerassignment, Permitted Indebtedness and (y) with respect to Operating Companytransfer, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any conveyance of the PropertiesProperty or any interest therein or any interest, Senior Mezzanine Collateral direct or Collateral as required by this Agreementindirect, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, if such consent is required by the Mortgage or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, Collateral or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ sue for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) impair the enforcement of the Pledge Agreement or (g) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; .
(b) Nothing contained herein shall in any manner or (g) constitute a waiver of way release, affect or impair the right of Lender to enforce the liability recover, and obligation of BorrowerBorrower shall be fully and personally liable and subject to legal action, by money judgment or otherwise, to the extent of for any actual out-of-pocket loss, damage, cost, expense, liabilitydamage, claim or other obligation incurred by Lender (including without limitation reasonable attorneys’ fees and costs reasonably incurredcourt costs, but expressly excluding indirect, consequential and punitive damages of any kind, except to the extent of consequential and indirect damages owed by L▇▇▇▇▇ to an unaffiliated third party) arising incurred or suffered by L▇▇▇▇▇ ▇▇▇▇▇▇▇ out of or in connection with the following:
(i) fraud or intentional material misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery origination or funding of the Loan Documents and/or the Loan;
(ii) the misappropriationgross negligence or willful misconduct of Borrower, conversion Senior Borrower or misapplication Guarantor in connection with the Loan or any Property;
(iii) physical waste of any Individual Property caused by the intentional acts of Borrower, any Individual Senior Borrower or Guarantor (except for physical waste caused by any omissions resulting from insufficient net cash flow from the Property or a failure or refusal of Senior Lender to make cash flow from the Property available to Senior Borrower to the extent Senior Lender is required to make such disbursement under the Senior Loan Agreement);
(iv) the removal or disposal of any portion of any Individual Property in contravention of the Loan Documents or Senior Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds at the direction of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating CompanyGuarantor during the continuance of an Event of Default;
(v) the misappropriation or conversion by B▇▇▇▇▇▇▇, including, without limitation, Senior Borrower or Guarantor in contravention of the Loan Documents of (A) any RevenuesInsurance Proceeds paid by reason of any loss, damage or destruction to any Individual Property, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of any Individual Property, (DC) any Rents or security deposits (or any item during the continuance of Revenue, from whatever source) following an Event of Default, or (ED) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(ivvi) any act Borrower’s failure to pay, or cause Senior Borrower to pay, Taxes (other than those that are being contested in accordance with the terms of actual intentional physical waste by Borrowerthis Agreement); provided, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
that there shall be no liability under this clause (vi) if Borrower, Mortgage Borrower, Senior Mezzanine (A) available cash flow which Borrower or Operating Company Senior Borrower actually receives is insufficient to pay such amounts or (B) there are sufficient funds in the Tax and Insurance Escrow Fund to pay such Taxes prior to the date upon which such payment becomes delinquent and Senior Lender is required to use such amounts for the payment of such Taxes and fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by make such payment in accordance with this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableSenior Loan Agreement;
(1) Borrower’s failure to, or cause Senior Borrower to, obtain and maintain the fully paid for Insurance Policies in accordance with and to the extent required by Section 6.1 of the Senior Loan Agreement; provided, that there shall be no liability under this clause (vii) if (A) available cash flow which Borrower or Senior Borrower actually receives is insufficient to pay such amounts or (B) there are sufficient funds in the Tax and Insurance Escrow Fund to pay such insurance premiums prior to the date upon which such payment becomes delinquent and Senior Lender is required to use such amounts for the payment of such insurance premiums and fails to make such payment in accordance with this Agreement or (2) the failure of the windstorm/named storm Policies maintained by Senior Borrower to meet the requirements described in that certain Letter Agreement regarding insurance, dated as of the Closing Date, between Senior Lender and Senior Borrower;
(viii) Borrower’s failure to, or cause Senior Borrower to, pay charges for labor or materials or other charges or judgments that can create Liens on any portion of any Individual Property (other than those that are being contested in accordance with the terms of the Loan Documents and Senior Loan Documents), except to the extent of insufficient net cash flow from the Property or a failure or refusal of Senior Lender to make a disbursement of any Reserve Funds available to Borrower to the extent Lender is required to make such disbursement under this Agreement or the Senior Loan Agreement;
(ix) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Individual Property which are not delivered to Mortgage Senior Lender by Senior Borrower upon a foreclosure of any of the Properties Individual Senior Borrower or any Individual Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence commencement of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiix) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueintentionally omitted;
(ixxi) if the 3900 Paramount Parkway HVAC Issue and any actions, suits or proceedings in connection therewith until such time as the same is settled, dismissed pursuant to a final non-appealable decision of a court of competent jurisdiction or otherwise resolved in favor of Senior Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as ;
(xii) a Special Purpose Entity or breaches material breach of any material representation or warranty set forth in Section 4.1.30 hereof that is not set forth in clause (c)(ii)(E) below (other than a failure to comply with the requirements set forth in clause (xii) and (xxiiii) of the definition of “Special Purpose Entity”);
(xiii) for any Individual Property for which an updated Survey was not delivered to Lender in connection with this Agreement, any Liens, encumbrances or other matters which would have been disclosed in an updated Survey for such Individual Property that was not disclosed in the Title Insurance Policy for such Individual Property received by Lender prior to the Closing Date, provided that prior to seeking any recovery pursuant to this clause (xiii) Lender shall first seek recovery under the applicable Title Insurance Policy for a period not to exceed six (6) months; andprovided, further, that subject to Senior L▇▇▇▇▇’s rights under the Senior Loan, (A) Borrower shall cooperate with Lender in making such claim and shall reimburse Lender for the reasonable out-of-pocket costs and expenses incurred by L▇▇▇▇▇ in connection with seeking to recover such losses from such Title Insurance Policy, and (B) to the extent Borrower or Guarantor has paid or reimbursed Lender for any Losses under this clause (xiii) and L▇▇▇▇▇ subsequently obtains recovery under the applicable Title Insurance Policy, Lender shall reimburse Borrower and/or Guarantor, as applicable, up to the amount of the Losses so paid or reimbursed);
(xxiv) if Borrower, Mortgage Borrower, Senior Mezzanine any Transfer in violation of the Loan Documents that is not a Permitted Transfer and is not otherwise set forth in clause (c)(ii)(C)(2);
(xv) Borrower or Operating Company any Individual Senior Borrower fails to obtain LenderL▇▇▇▇▇’s prior written consent to any secured Indebtedness or voluntary Indebtedness Lien encumbering the Properties or the Collateral (other than (x) with respect to Mortgage Borrower, a Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating CompanyEncumbrance), as applicablein each case, in violation of the Loan Documents or Senior Loan Documents; or
(xvi) any material modification or voluntary Lien (other than Permitted Encumbrances) encumbering any termination of the PropertiesGround Lease, any PILOT Lease or any PILOT Lease Documents by the applicable Individual Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither acquisition of fee title to the negative capital account of any Affiliate of Borrower estate held by PILOT Lessor in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borroweraccordance with Section 5.1.27(e) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalhereof) without L▇▇▇▇▇’s consent.
(bc) Notwithstanding anything to the contrary in this Agreement, the Note or 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 Bankruptcy Code or other applicable Insolvency Law to file a claim for the full amount of the Indebtedness Debt secured by the Security Documents or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents, and (ii) the Debt shall be fully recourse to Borrower in the event of any of the following:
(A) Borrower or any Borrower Party (1) files a voluntary petition, files any insolvency or reorganization case or proceeding, institutes proceedings to have such Borrower or Borrower Party be adjudicated bankrupt or insolvent or otherwise seeks relief, in each case under the Bankruptcy Code or any other Insolvency Law; (2) (x) solicits or causes to be solicited petitioning creditors for, or (y) supports, colludes with respect to, consents to or otherwise acquiesces in, approves or joins in any involuntary petition filed against such Borrower or Borrower Party by any other Person (other than Lender or Senior Lender) under the Bankruptcy Code or any other Insolvency Law; (3) applies for, or otherwise commences any process seeking, the appointment of a custodian, receiver, trustee, sequestrator, conservator, liquidator, examiner or similar person for such Borrower or Borrower Party or any portion of any Individual Property or the Collateral; or (4) admits, in writing (other than in correspondence with Lender in connection with a workout or restructuring of the Loan) or in any legal proceeding, such Borrower or Borrower Party’s insolvency or general inability to pay its debts as they become due (except as may be required under subpoena or pursuant to any court required document); provided, however, that Borrower shall not have any liability under this clause (A) to the extent of any of the foregoing that is undertaken by or at the direction of Lender or Senior Lender;
(B) any Transfer of a direct or indirect equity interest in any Restricted Party in violation of the Loan Documents;
(C) if Guarantor, Borrower or any Affiliate of the foregoing, in connection with any enforcement action or exercise or assertion of any right or remedy by or on behalf of Lender under or in connection with the Guaranty, the Note, the Pledge Agreement or any other Loan Document, raises a defense or seeks judicial intervention or injunctive or other equitable relief of any kind, or asserts in a pleading filed in connection with a judicial proceeding any defense against Lender or any right in connection with any security for the Loan, in each case which are raised or asserted in bad faith or are frivolous as finally determined by a court of competent jurisdiction;
(D) any Borrower Party, Guarantor or any Affiliate of any of them causes any of Holdco or TRS to amend or otherwise modify its organizational documents in order to amend or repeal its election to be governed by Article 8 of the UCC, or any termination or cancellation of the limited liability company membership certificate evidencing Borrower’s one hundred percent (100%) limited liability company interest in NLO Pledgor LLC or Member’s one hundred percent (100%) common liability company interest in Borrower, as delivered to Lender on the Closing Date in connection with the Pledge Agreement;
(E) if Borrower, Senior Borrower or other Borrower Party fails to maintain its status as a Special Purpose Entity or comply with any representation, warranty or covenant set forth in Section 4.1.30 hereof, in each case, that results in a substantive consolidation of any Borrower Party with any other Person in any bankruptcy proceeding involving or consolidating such Borrower Party, the Properties, the Collateral or any assets or liabilities of such Borrower Party (other than a failure to comply with the requirements set forth in clause (xii) and (xxiv) of the definition of “Special Purpose Entity”);
(F) if the Section 362(e)(2)(C) Election is not timely filed; or
(G) if, at any time after the CTB Effective Date, Borrower is not treated as a corporation (including, for the avoidance of doubt, a REIT) for U.S. federal income tax purposes or Borrower is treated as a QRS.
(d) Subject to and without impairing the obligations of Borrower hereunder or under the Loan Documents (including Sections 9.2 and 9.3 hereof) or the obligations of any the Guarantor under the Guaranty and the Environmental Indemnity, or any other Borrower Party under any Loan Document to which it is a party, no direct or indirect shareholder, partner, member, principal, affiliate, employee, officer, trustee, director, agent or other representative of Borrower and/or of any of his or its Affiliates (a “Related Party”) shall have any personal liability for, nor be joined as party to, any action with respect to payment, performance or discharge of any covenants, obligations, or undertakings of Borrower under this Agreement, and by acceptance hereof, Lender for itself and its successors and assigns irrevocably waives any and all right to sue for, seek or demand any such damages, money judgment, deficiency judgment or personal judgment against any Related Party under or by reason of or in connection with this Agreement or the other Loan Documents; provided that (a) any Related Party that is a party to any Loan Document or any other separate written guaranty, indemnity or other agreement given by such Related Party in connection with the Loan (including Borrower) shall remain fully liable therefor and the foregoing provisions shall not operate to limit or impair the liabilities and obligations of such Related Parties or the rights and remedies of Lender thereunder and (b) the foregoing provisions shall not constitute a waiver, release or impairment of any obligation evidenced or secured by the Loan Documents or otherwise affect the validity or enforceability of this Agreement and L▇▇▇▇▇’s rights and remedies against Borrower hereunder.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications belowExcept as otherwise expressly provided in this Section 9.4, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in this Agreement, the Note or the Pledge Agreement or any other Loan Document by any action or proceeding against Borrower or any Exculpated Party, except that Lender may bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Lender to enforce and realize upon this Agreement, the Note, the Pledge Agreement, the other Loan Documents, and the Collateral and any other collateral for the Debt in which a security interest is granted to Lender by this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Collateral, and in any other collateral given in which a security interest is granted to Lender, and Lender, Lender by accepting the Note, this Agreement, the Pledge Agreement and or the other Loan Documents. Lender, by accepting this Agreement, the Note and the Pledge Agreement, agrees that it shall not not, except as otherwise expressly provided in this Section 9.4, ▇▇▇ for, seek or demand any deficiency or other money judgment against Borrower Borrower, any direct or indirect member, manager, shareholder, partner, beneficiary or other owner of beneficial ownership interests in Borrower, or any affiliate, director, officer, employee, trustee or agent of any of the foregoing (each, an “Exculpated Party” and, collectively, the “Exculpated Parties”) in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreement or the other Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge AgreementAgreement (subject, however, to the aforesaid limitation on Lender’s right to ▇▇▇, seek or demand a deficiency or other money judgment against Borrower or any other Exculpated Party); (ciii) affect the validity or enforceability of any indemnity (including, without limitation, the Environmental Indemnity), guaranty, master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Pledge Agreement, or the other Loan Documents (subject, however, to any exculpatory or any of the rights and remedies of Lender thereundernon-recourse provisions appearing in such indemnity, guaranty or similar instrument); (div) impair the right of Lender to obtain the appointment of a receiver; (ev) [intentionally omitted]; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of impair the right of Lender to enforce the liability provisions of Sections 4.1.8, 4.1.28, 5.1.9 and obligation of 5.2.8 hereof (subject, however, to the aforesaid limitation on Lender’s right to ▇▇▇, seek or demand a deficiency or other money judgment against Borrower or any other Exculpated Party which such limitation, with respect to Borrower, by money shall not apply to the Environmental Indemnity); or (vii) impair the right of Lender to obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower if and to the extent necessary to obtain any insurance proceeds or condemnation awards to which Lender would otherwise be entitled under this Agreement; provided however, that Lender shall only be entitled to enforce such judgment to the extent of the insurance proceeds and/or condemnation awards.
(b) Notwithstanding the provisions of this Section 9.4 to the contrary, Borrower and Guarantor pursuant to the Guaranty (but not any other Exculpated Parties) shall be personally liable to Lender for any actual lossLosses Lender incurs due to the following (collectively, damagethe “Recourse Events”):
(i) any fraud committed by Borrower, cost, expense, liability, claim Mortgage Borrower or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out any of their Affiliates or agents in connection with the following:Loan or Mortgage Loan;
(iii) fraud any intentional and material misrepresentation by Borrower or Mortgage Borrower in any of the Loan Documents or the Mortgage Loan Documents;
(iii) the misappropriation by Borrower, Mortgage Borrower or any of their Affiliates or agents of any funds (including misappropriation of Rents, security deposits and/or Net Proceeds);
(iv) any Transfer, Sale or Pledge of the Property, the Collateral or any interest of a Restricted Party therein, and in each case, which is prohibited hereunder;
(v) the intentional misrepresentation and material breach of any representation in the Environmental Indemnity or in Sections 4.1.39 or 5.1.19 hereof;
(vi) any voluntary filing by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Mortgage Principal or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition Principal under the Bankruptcy Code or any other Federal federal or state bankruptcy or insolvency law; ;
(Bvii) the any involuntary filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Mortgage Principal or any Guarantor Principal under the Bankruptcy Code or any other Federal federal or state bankruptcy or insolvency law by any Person in which acting at the request or under the direction of Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower or any of their respective Affiliates, agents Affiliates or employees colludes with or such other Person, or agents;
(viii) Mortgage Borrower, Mortgage BorrowerPrincipal, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting Principal consents to or otherwise acquiescing acquiesces in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining joins in an application for the appointment of a custodian, receiver, trustee, trustee or examiner for Mortgage Borrower, Mortgage BorrowerPrincipal, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Principal or any portion thereof, other than at of the request Property or the Collateral;
(ix) Borrower’s making a distribution to its equity owners after the occurrence and during the continuance of Lender; or an Event of Default;
(Ex) Mortgage Borrower, Mortgage BorrowerPrincipal, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor making Principal makes an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become duecreditors;
(ixxi) if Borrower, Senior Mezzanine Borrower or any intentional physical waste of the Property by Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage BorrowerPrincipal, Senior Mezzanine Borrower or Principal or any of their Affiliates or agents;
(xii) any claims, actions or other proceedings brought by the unit holders of Archstone ▇▇▇▇▇ Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) Trust with respect to the merger of Archstone ▇▇▇▇▇ Operating Trust occurring simultaneously herewith; or
(xiii) Mortgage Borrower, Permitted Indebtedness and (y) ’s failure to obtain any consent required with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any the transfer of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or applicable Properties in connection with the Loan Documents. Neither the negative capital account merger of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalArchstone ▇▇▇▇▇ Operating Trust occurring simultaneously herewith.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Archstone Smith Operating Trust)
Exculpation. (a) Subject to Except as otherwise provided in this Section 9.4 and comparable provisions in the qualifications belowPledge Agreement or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Note or the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any of Borrower's Affiliates, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under this Agreement, the Note, the Pledge Agreement, the other Loan Documents, and the Collateral, and any other Collateral created by this Agreement, the Note, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note and the other Loan DocumentsPledge Agreement, agrees that it shall not ▇▇▇ not, except as otherwise provided in this Section 9.4 and comparable provisions or in the Pledge Agreement, sue for, seek or demand any deficiency judgment against Borrower or ▇▇▇ of Borrower's Affiliates in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreement or the other Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge Agreement; (ciii) except as set forth in this Section 9.4, affect the validity or enforceability of any indemnity (including, without limitation, the Environmental Indemnity), guaranty (including, without limitation, the Guaranty), master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Pledge Agreement, or the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of impair the right of Lender to enforce Sections 4.1.9, 4.1.29, 5.1.9 and 5.2.8 hereof; or (vi) impair the liability and obligation right of Borrower, by money Lender to obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower to the extent necessary to (A) preserve or enforce its rights and remedies against the Collateral or (B) obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under the terms of this Agreement or the Pledge Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual lossamounts Lender is entitled to under the terms of this Agreement from such Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 9.4 to the contrary, damage, cost, expense, liability, claim or other obligation incurred by Borrower shall be personally liable to Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with for the following:
Losses Lender incurs to the extent due to: (i) fraud or intentional material misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and the delivery of this Agreement, the Note, the Pledge Agreement, the other Loan Documents and/or the Loan;
or any Mortgage Loan Document; (ii) the misappropriation, conversion Borrower's or Pledgor's or Operating Lessee's or Mortgage Borrower's or Mezzanine Borrower's misapplication in contravention or misappropriation of the Loan Documents Rents received by Borrower, Mortgage Borrower, Senior Mezzanine BorrowerPledgor, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine BorrowerLessee, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item Mezzanine Borrower after the occurrence of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Sources: Junior Mezzanine Loan Agreement (Felcor Lodging Trust Inc)
Exculpation. (a) Subject to the qualifications below, Lender neither Collateral Agent nor Administrative Agent shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the any Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender Collateral Agent or Administrative Agent, as applicable, may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder Collateral Agent or Administrative Agent, as applicable, to enforce and realize upon its or the Lenders’ interest under the any Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, Collateral or any other collateral given to Lender Collateral Agent pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Collateral Agent, and each Lender, Collateral Agent and LenderAdministrative Agent, by accepting the any Note, this Agreement, the Pledge Agreement and the other Loan Documents, as applicable, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the with any Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender Collateral Agent or Administrative Agent, as applicable, to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender Collateral Agent or Administrative Agent, as applicable, thereunder; (d) impair the right of Lender Collateral Agent or Administrative Agent, as applicable, to obtain the appointment of a receiver, custodian, sequestrator or other similar designee; (e) intentionally omitted; (f) constitute a prohibition against Lender Collateral Agent or Administrative Agent, as applicable, to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender Collateral Agent to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender Collateral Agent or Administrative Agent, as applicable, to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation actually incurred by Collateral Agent and/or Administrative Agent, as applicable, or any Lender (including reasonable, out of pocket attorneys’ fees and costs expenses reasonably incurredincurred but excluding (x) consequential damages and/or lost profits, and (y) punitive, exemplary or other special damages, except to the extent claimed against or recovered from Collateral Agent or Administrative Agent or a Lender, as applicable, by any third party which are not a result of any fraud, gross negligence or willful misconduct by Collateral Agent or Administrative Agent or a Lender, as applicable) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine A Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention willful misconduct of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine A Borrower, Operating Company Borrower or Guarantor;
(iii) voluntary material physical waste of the Property by Mortgage Borrower, Mezzanine A Borrower, Borrower, Guarantor or any Affiliate thereof (except if the cash flow from the Property is not sufficient to prevent such material physical waste (so long as such insufficiency does not arise from the intentional misappropriation or conversion of revenues by Mortgage Borrower, Mezzanine A Borrower, Borrower, Guarantor or any Affiliates thereof));
(iv) the removal or disposal of any funds portion of the Property by Mortgage Borrower, Senior Mezzanine A Borrower, Borrower, Guarantor or any of its Affiliates after an Event of Default, unless such Personal Property is replaced with property of the same utility and of the same or greater value and such removal or disposal of such Personal Property is in the ordinary course of Mortgage Borrower Borrower’s business;
(v) the misappropriation or Operating Companyconversion by Mortgage Borrower, includingMezzanine A Borrower, without limitationBorrower, Guarantor or any Affiliate thereof of (A) any RevenuesInsurance Proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of the Property, (DC) any CPLV Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, (D) any CPLV Rents paid more than one month in advance, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication Net Liquidation Proceeds After Debt Service received by Borrower, Mezzanine A Borrower, or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrowerfailure to pay or cause to be paid charges for labor or materials or other charges or judgments incurred by or on behalf of Mortgage Borrower that can create Liens on any portion of the Property (except to the extent such failure occurs solely as a result of Mortgage Lender or Administrative Agent, as applicable, applying CPLV Rents to the Mortgage BorrowerDebt or the Debt, Senior Mezzanine Borrower as applicable, or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer holding CPLV Rents as required by this Agreement, additional collateral for the Mortgage Loan Agreement or Loan, during the Mortgagescontinuance of an Event of Default, Mortgage Loan Default or a Cash Sweep Period, as applicable, and such charges or judgments relate to or otherwise arose in respect of work, matters or other actions that commenced prior to the occurrence of such Event of Default, Mortgage Loan Default or Cash Sweep Event);
(vii) any security deposits, advance deposits or any other deposits collected by Mortgage Borrower with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Mortgage Loan Default that gave rise to such foreclosure or action in lieu thereof;
(viii) failure by Borrower to maintain its status as a Single Purpose Entity or comply with any representation, warranty or covenant set forth in Section 4.1.30, failure by Mezzanine A Borrower to maintain its status as a Single Purpose Entity or comply with any representation, warranty or covenant set forth in Section 4.1.30 of the event of:Mezzanine A Loan Agreement, or failure by Mortgage Borrower to maintain its status as a Single Purpose Entity or comply with any representation, warranty or covenant set forth in Section 4.1.30 of the Mortgage Loan Agreement;
(ix) if Borrower fails to obtain Administrative Agent’s prior written consent to any Indebtedness or voluntary Lien encumbering the Collateral (other than a Permitted Encumbrance);
(x) any material modification or termination of the CPLV Lease, CPLV Lease Guaranty or Ground Lease by Borrower, Mezzanine A Borrower, or Mortgage Borrower without Administrative Agent’s consent in violation of the terms hereunder;
(xi) any termination or cancellation of the Management Agreement by Borrower, Mezzanine A Borrower, or Mortgage Borrower without Administrative Agent’s, Mezzanine A Administrative Agent’s and/or Mortgage Lender’s prior written consent in violation of the terms hereunder, the Mezzanine A Loan Agreement or the Mortgage Loan Agreement, and Mortgage Borrower fails to enter into a Replacement Management Agreement in accordance with the terms hereunder and the Mortgage Loan Agreement;
(xii) if Guarantor, Mortgage Borrower, Mezzanine A Borrower, Borrower or any Affiliate of any of the foregoing, in connection with any enforcement action or exercise or assertion of any right or remedy by or on behalf of Administrative Agent and/or Collateral Agent under or in connection with the Guaranty, any Note, the Pledge Agreement or any other Loan Document, raises a defense or seeks judicial intervention or injunctive or other equitable relief of any kind, or asserts in a pleading filed in connection with a judicial proceeding any defense against any Lender, Administrative Agent and/or Collateral Agent or any right in connection with any security for the Loan (other than any defense that is raised in good faith by Mortgage Borrower, Mezzanine A Borrower, Borrower or Guarantor); and/or
(A) any obligation of Borrower, Mezzanine A Borrower, Mortgage Borrower, Senior Guarantor or any Affiliate of any of them (each, a “Borrower Party” and collectively the “Borrower Parties”) to indemnify any Person that, immediately prior to any acquisition of title to the Collateral pursuant to a UCC foreclosure sale, a UCC strict foreclosure, an assignment in lieu of foreclosure or other enforcement action under the Loan Documents (collectively, an “Equity Collateral Enforcement Action”; and the date on which an Equity Collateral Enforcement Action is consummated, an “Equity Collateral Transfer Date”), was an Affiliate of any Borrower Party, to the extent such obligation continues to be the obligation of the transferee at such Equity Collateral Enforcement Action and is not expressly waived in writing by the Persons covered by such indemnification obligation, and (B) any obligation of any Borrower Party accruing prior to, on or after the Equity Collateral Transfer Date to pay (1) legal fees to legal counsel engaged by any Borrower Party prior to the Equity Collateral Transfer Date incurred in objecting to, resisting or otherwise impeding exercise of Administrative Agent’s and/or Collateral Agent’s rights and remedies under the Loan Documents, Mezzanine A Administrative Agent’s and/or Mezzanine A Collateral Agent’s rights and remedies under the Mezzanine A Loan Documents, or Mortgage Lender’s rights and remedies under the Mortgage Loan Documents, (2) amounts due under any contract between any Borrower Party, on the one hand, and any Affiliate of any Borrower Party, on the other hand (unless such contract is assumed in writing by the Person acquiring the Collateral on or after the Equity Collateral Transfer Date), and/or (3) any income tax or indemnity liability of any Borrower Party to any other Borrower Party.
(a) Borrower, Operating Company Mezzanine A Borrower or any Guarantor Mortgage Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Mezzanine A Borrower or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or A Borrower, Mortgage BorrowerBorrower or Guarantor colludes with, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting otherwise solicits or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine A Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches from any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.Person;
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower or Leasehold Pledgor to perform and observe the obligations Obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, Leasehold Pledgor, or against Owner, Operating Lessee, any SPC Party, any Guarantor, any Affiliates of the foregoing or any of their respective direct or indirect principals, directors, officers, employees, beneficiaries, shareholders, partners, members, trustees or agents (each, exclusive of the Borrower and Leasehold Pledgor, an “Other Exculpated Party”), except that (1) any Other Exculpated Party that is party to any Loan Document or any other separate written guaranty, indemnity or other agreement given by such Other Exculpated Party in connection with the Loan (including, without limitation, the Subordination of Management Agreement or any other Loan Document to which such Other Exculpated Party is a party) shall remain fully liable therefor and the foregoing provisions shall not operate to limit or impair the liabilities and obligations of such Other Exculpated Party thereunder, and (2) Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in all or any portion of the Collateral, Collateral or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower or Leasehold Pledgor only to the extent of Borrower’s and Leasehold Pledgor’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇s▇▇ for, seek or demand any deficiency judgment against Borrower any of the Exculpated Parties in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 10.1 shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower or Leasehold Pledgor as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Environmental Indemnity; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower or Leasehold Pledgor in order to fully realize the security granted by the Pledge Agreement or the other Security Documents or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all or any portion of the Collateral; (g) waive or impair the liability of any Other Exculpated Party under any Loan Document or any other separate written guaranty, indemnity or other agreement to which such Other Exculpated Party is a party (including, without limitation, the Subordination of Management Agreement or any other Loan Document to which such Other Exculpated Party is a party); or (gh) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrower or Leasehold Pledgor, by money judgment or otherwise, to the extent of any actual loss, damage, cost, out-of-pocket cost or expense, liability, claim or other obligation incurred by Lender (including reasonable outside attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower or Leasehold Pledgor for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
(i) fraud or intentional material misrepresentation committed by Borrower, Mortgage Leasehold Pledgor, any Guarantor, any Individual Owner, any Operating Lessee or any Affiliate of Borrower, Senior Mezzanine Borrowerany Individual Owner, any Operating Company Lessee or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion Borrower or misapplication Leasehold Pledgor incurs any Indebtedness in contravention violation of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company not otherwise set forth in clause (i) in the definition of “Springing Recourse Event” below (unless such debt was permitted when incurred but was not repaid due to the Property’s failure to generate sufficient cash flow or any Guarantor the failure of any Lender to release funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine CollateralAccounts);
(iii) the misappropriation, conversion Borrower or misapplication by Leasehold Pledgor fails to obtain Lender’s prior consent to (a) any Transfer of any Individual Property or (b) any Transfer of a direct or indirect interest in Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in each case not otherwise set forth in clause (ii) in the definition of any security deposits or Rents paid more than one (1) month in advance“Springing Recourse Event” below;
(iv) any act removal of actual intentional physical waste personal property from the Properties during an Event of Default by Borrower or Leasehold Pledgor or on behalf of Borrower, Mortgage Leasehold Pledgor, any Individual Owner or any Operating Lessee by any Guarantor or any Affiliate of Borrower, Senior Mezzanine Leasehold Pledgor, any Individual Owner, any Operating Lessee or any Guarantor, unless replaced with personal property of substantially the same or greater utility and of the same or greater value;
(v) any intentional material physical Waste at any Individual Property committed by Borrower or Leasehold Pledgor or on behalf of Borrower, Leasehold Pledgor, any Individual Owner or any Operating Company Lessee by any Guarantor or any Affiliate of Borrower, Leasehold Pledgor, any Individual Owner, any Operating Lessee or any Guarantor;
(vvi) the material misappropriation by Borrower or Leasehold Pledgor or on behalf of Borrower, Leasehold Pledgor, any Individual Owner or any Operating Lessee by any Guarantor or any Affiliate of Borrower, Leasehold Pledgor, any Individual Owner, any Operating Lessee or any Guarantor of (A) any Insurance Proceeds paid by reason of any Casualty to any Individual Property, (B) any Awards in connection with the Condemnation of any Individual Property and (C) any Gross Revenues after (or that results in) a Trigger Period or an Event of Default, in each case, in violation of the Loan Documents;
(vii) any defaults under the Franchise Agreement for failure to complete any PIP, which results in the termination or cancellation of the applicable Franchise Agreement or any other termination or cancellation of a Franchise Agreement; provided, there shall not be Borrower’s Recourse Liability if Borrower or Leasehold Pledgor delivers (or causes Owner or Operating Lessee to deliver) a replacement Franchise Agreement in compliance with the Section 4.34(d) within 90 days of such termination or cancellation or if the Allocated Loan Amount for the Individual Property subject to such terminated Franchise Agreement together with the Allocated Loan Amount for all other Individual Properties that have had their Franchise Agreements terminated accounts for less than five percent (5%) of the aggregate Allocated Loan Amounts of all of the Properties; provided that with respect to the Red Zone Properties any default under the Franchise Agreement with respect to such Red Zone Property shall result in Borrower’s Recourse Liability notwithstanding that less than five percent (5%) of the aggregate Allocated Loan Amount have been terminated until such time as such Red Zone Property ceases to be classified as a “Red” or “Progress” property by the applicable Franchisor;
(viii) any breach of any representation, warranty, covenant provision of Section 4.4 or indemnification provision in the Environmental Indemnity Schedule V of this Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender (other than with respect thereto to clause (d) of Schedule V (with respect to trade payables only), clause (f) of Schedule V, clause (j) of Schedule V, clause (o) of Schedule V (with respect to trade payables only), clause (v) of Schedule V and clause (w) of Schedule V) other than a Springing Recourse Event described in either documentclause (b)(viii) below;
(viix) any and all Divested Property Liabilities; and/or
(x) the modification, surrender or termination of any Ground Lease if such modification or termination is prohibited under this Agreement or under any Mortgage.
(i) Borrower, Mortgage Leasehold Pledgor, Owner or Operating Lessee fails to obtain Lender’s prior consent to any financing for borrowed money secured by the Collateral or any Individual Property, or any voluntary conveyance of a mortgage, deed of trust, security deed, security agreement or similar grant by Borrower, Senior Mezzanine Borrower Leasehold Pledgor, Owner or Operating Company Lessee of a voluntary Lien upon any Individual Property or the Collateral, or Borrower, Leasehold Pledgor, Owner or Operating Lessee fails to obtain Lender’s prior consent to any voluntary intentional Transfer granting of a security interest in, voluntary pledge of or other voluntary Lien upon any direct or indirect equity interest in any Individual Owner, any Operating Lessee, any SPC Party or Mezzanine B Borrower, in each case, as required by this Agreementsecurity for any obligations or liabilities that is not permitted under the Loan Documents (excluding, for the avoidance of doubt, the security interests, pledges or Liens granted under the Mortgage Loan Agreement Documents securing the Mortgage Loan, the Mezzanine B Loan Documents securing the Mezzanine B Loan or the MortgagesLoan Documents securing the Loan), as applicable;
in each case under this clause (viii) any security deposits, advance deposits that is not permitted under the Loan Documents or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
otherwise cured; (viii) in the event of:
(Aii) Borrower, Mortgage Leasehold Pledgor, Owner or any SPC Party fails to obtain Lender’s prior consent to (a) any voluntary transfer of fee (or ground leasehold) title to any Individual Property or the Collateral that is not permitted under the Loan Documents or otherwise cured or (b) any voluntary transfer of a direct or indirect interest in Borrower, Senior Mezzanine Leasehold Pledgor, Owner or Operating Lessee that results in a change of control of Borrower, Leasehold Pledgor, Owner or Operating Company or Lessee that is not permitted under the Loan Documents; (iii) Borrower, Leasehold Pledgor, any Guarantor filing Individual Owner, any Operating Lessee and/or any SPC Party, files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law,; (Biv) the filing of an involuntary petition against Borrower, Mortgage BorrowerLeasehold Pledgor, Senior Mezzanine Borrowerany Individual Owner, any Operating Company or Lessee and/or any Guarantor SPC Party under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower, Mortgage BorrowerLeasehold Pledgor, Senior Mezzanine Borrowerany Individual Owner, any Operating Company or any Guarantor or any of their respective Affiliates, agents or employees Lessee and/or SPC Party colludes with or otherwise assists such other Person, or and/or Borrower, Mortgage BorrowerLeasehold Pledgor, Senior Mezzanine Borrowerany Individual Owner, any Operating Company Lessee and/or any SPC Party solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Leasehold Pledgor, any Individual Owner, any Operating Company or Lessee and/or any Guarantor from SPC Party by any Person; (Cv) Borrower, Mortgage BorrowerLeasehold Pledgor, Senior Mezzanine Borrowerany Individual Owner, any Operating Company or Lessee and/or any Guarantor filing an answer consenting SPC Party fails to or otherwise acquiescing in or joining in oppose any involuntary petition filed against it by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency lawlaw (unless there is no good faith defense to such involuntary petition); (Dvi) Borrower, Mortgage Leasehold Pledgor, any Individual Owner or any Operating Lessee or any Affiliate, officer, director or representative which controls Borrower, Senior Mezzanine BorrowerLeasehold Pledgor, such Individual Owner or such Operating Company Lessee, as the case may be, consents to, or any Guarantor consenting to or acquiescing in or joining in joins in, an application for the appointment of a custodian, receiver, trustee, trustee or examiner for Borrower, Mortgage BorrowerLeasehold Pledgor, Senior Mezzanine Borrowersuch Individual Owner, such Operating Company Lessee and/or any portion of any Individual Property or any Guarantor or any of the Properties, the Collateral, as the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lendercase may be; or (Evii) Borrower, Mortgage BorrowerLeasehold Pledgor, Senior Mezzanine Borrowerany Individual Owner, any Operating Company or Lessee and/or any Guarantor making SPC Party makes an assignment for the benefit of creditors (other than Lender)or admits, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
due (in each case except to the extent required by applicable law); (viii) Borrower or Leasehold Pledgor fails to comply with the provisions of Section 4.4 or Schedule V of this Agreement (other than those relating to solvency or adequacy of capital or adequacy of cash flow), and such failure results in an order of substantive consolidation of Borrower or Leasehold Pledgor or one (1) or more of the Individual Owners or Operating Lessee with any other Person (other than another Individual Owner, Operating Lessee or the Liquor Subsidiary) in a bankruptcy or similar proceeding under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law; (ix) if Borrowersuch third party's claim of ownership of, Senior Mezzanine Borrower or Mortgage Borrower fails a Lien upon, the Pledged Securities is fully and finally disposed of in favor of such third party, whether such disposition shall occur prior to maintain its status as or after a Special Purpose Entity foreclosure on the Collateral by Lender, or breaches any material representation or warranty set forth (ix) in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) the event that the leasehold estate created by the Ground Lease with respect to Mortgage Borrowerthe Dallas Courtyard Property shall be surrendered by or on behalf of Owner of such Ground Lease shall be terminated or cancelled or otherwise rendered ineffective, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company)in either case, as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any a result of the Properties, Senior Mezzanine Collateral or Collateral as required by applicable Individual Owner’s rejection of such Ground Lease in a bankruptcy proceeding; provided that liability pursuant to this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower clause (other than Guarantor, to the extent provided under the Guarantyix) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 exceed the Bankruptcy Code to file a claim Allocated Loan Amount for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan DocumentsDallas Courtyard Property.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Hospitality Investors Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgage or to exercise its remedies against all of the CollateralProperty; or (gvii) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
(ia) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery of the Loan Documents and/or obtaining the Loan;
(iib) the misappropriation, conversion or misapplication in contravention physical waste of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Property or any Guarantor portion thereof, or after an Event of Default the removal or disposal of any funds portion of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, the Property (Aexcept to the extent permitted under the Leases);
(c) any Revenues, (B) Proceeds paid by reason of any Net Liquidation Proceeds Insured Casualty or Insurance Proceeds, (C) any Awards Award received in connection with a CondemnationCondemnation or other sums or payments attributable to the Property not applied in accordance with the provisions of the Loan Documents (except to the extent that Borrower did not have the legal right, because of the terms of the Leases, a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums or payments);
(Dd) any all Rents of the Property received or security deposits collected by or on behalf of the Borrower after an Event of Default and not applied to payment of Principal and interest due under the Note, and to the payment of actual and reasonable operating expenses of the Property, as they become due or payable (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or any item similar judicial proceeding in which Borrower is legally prevented from directing the disbursement of Revenue, from whatever sourcesuch sums);
(e) misappropriation (including failure to turn over to Lender on demand following an Event of Default) of tenant security deposits and rents collected in advance, or (E) any distribution or other payments made in connection with any part of funds held by Borrower for the Collateral or Senior Mezzanine Collateralbenefit of another party;
(iiif) the misappropriationfailure to pay Taxes before they become delinquent, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor limited to the extent cash flow is available from the operation of any security deposits or Rents paid more than one (1) month in advancethe Property to pay such Taxes;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(vg) the breach of any representation, warranty, covenant or indemnification provision in the any Loan Document concerning Environmental Indemnity Agreement concerning environmental lawsLaws or Hazardous Substances, hazardous substances including Sections 4.21 and asbestos 5.8, and any indemnification clauses (viii) through (xi) of Lender with respect thereto in either documentSection 5.29;
(vih) if the gross negligence or willful misconduct of Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;; or
(viii) failure to pay (or cause to be paid) charges for labor or materials or other charges that can create Liens on any security deposits, advance deposits or any other deposits collected with respect to any portion of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except Property (limited to the extent any such security deposits were applied in accordance with cash flow is available from the terms and conditions of any operation of the Leases prior to Property), unless such charges are the occurrence subject of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person bona fide dispute in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower is contesting the amount or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion validity thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note Agreement or any of the Loan Documents, (A) 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 Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender Debt in accordance with the Loan Documents, and (B) Lender’s agreement not to pursue personal liability of Borrower as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Debt shall be fully recourse to Borrower in the event that one or more of the following occurs (each, a “Springing Recourse Event”): (i) an Event of Default described in Section 8.1(d) shall have occurred or (ii) a breach of the covenants set forth in Section 5.13, or (iii) the occurrence of any condition or event described in either Section 8.1(f)(i) or Section 8.1(g) and, with respect to such condition or event described in Section 8.1(g), either Borrower, Guarantor or any Person owning an interest (directly or indirectly) in Borrower or Guarantor consents to, aids, solicits, supports, or otherwise cooperates or colludes to cause such condition or event or fails to contest such condition or event, or (iv) Borrower creates, incurs, assumes, permits or suffers to exist any Lien on all or any portion of the Property or any direct or indirect legal or beneficial ownership interest in Borrower, excepting only the Permitted Encumbrances, or incurs any indebtedness other than the Permitted Indebtedness or (v) an act or omission of any of Borrower or Guarantor or Affiliate of any thereof which hinders, delays or interferes with Lender’s enforcement of its rights hereunder or under any other Loan Document or the realization of the collateral, including the assertion by any of Borrower or Guarantor of defenses or counterclaims unless Borrower or Guarantor, as the case may be, is the prevailing party in the action in which such defense or counterclaim is asserted.
Appears in 1 contract
Sources: Loan Agreement (Inland Real Estate Income Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents, Net Proceeds and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with and Borrower shall be personally liable for the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(iv) Intentionally Omitted;
(v) the misapplication or conversion by Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards or other amounts received in connection with the Condemnation of all or a portion of the Property, or (C) any Rents following an Event of Default or any Rents collected for more than one month in advance to the extent such Rents or any other payments in respect of the Leases and other income of the Property or any other collateral are not applied to the costs of maintenance and operation of the Property and to the payment of taxes, lien claims, insurance premiums, Debt Service and other amounts due under the Loan Documents;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableIntentionally Omitted;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) Borrower’s indemnification of Lender set forth in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueSection 9.2 hereof;
(ix) if Borrower, Senior Mezzanine ’s failure to maintain insurance as required by this Agreement or to pay any taxes or assessments affecting the Property;
(x) Intentionally Omitted;
(xi) any intentional failure of Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity single purpose entity as required by, and in accordance with, the terms hereof; or
(xii) the breach of any representation, warranty or breaches any material representation or warranty set forth covenant in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages3.1.24 hereof. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents., and (B) the Debt shall be fully recourse to Borrower in the event that: (i) the first full monthly payment of interest under the Note is not paid when due; (ii) Borrower fails to maintain its status as a single purpose entity upon the request of Lender after an Event of Default; (iii) Borrower fails to obtain Lender’s prior consent to any subordinate financing or other voluntary Lien encumbering the
Appears in 1 contract
Sources: Loan Agreement (Telx Group, Inc.)
Exculpation. (a) Subject to the qualifications belowbelow and the Guaranty, Lender shall not enforce the liability and obligation of Owner or Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Owner or Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the CollateralCollateral Property, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Owner or Borrower only to the extent of Owner's or Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not ▇▇▇ for, seek or demand any deficiency judgment against Owner or Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Owner or Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (ciii) affect the validity or enforceability of any of the Loan Documents (including, without limitation, the Guaranty) or any Guaranty other guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; , (div) impair the right of Lender to obtain the appointment of a receiver, (v) impair the enforcement of the Assignment of Leases; (e) intentionally omitted; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgage or to exercise its remedies against all of the CollateralCollateral Property; or (gvii) constitute a waiver of the right of Lender to enforce the liability and obligation of Owner or Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:
: (ia) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Owner or Borrower or any Guarantor guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
; (iib) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of the Loan Documents by Owner or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, ; (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(vc) the breach of any representation, warranty, covenant or indemnification provision in the any Loan Document concerning Environmental Indemnity Agreement concerning environmental lawsLaws or Hazardous Substances, hazardous substances including Sections 5.1.32 and asbestos 6.10, and any indemnification clauses (viii) through (xi) of Lender with respect thereto in either document;
Section 6.16; (vid) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower physical waste or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreementafter an Event of Default, the Mortgage Loan Agreement removal or disposal of any portion of the MortgagesCollateral Property; (e) the misapplication or conversion by Owner or Borrower of (x) any Proceeds paid by reason of any Insured Casualty, as applicable;
(viiy) any Award received in connection with a Condemnation, or (z) any Rents, refunds of Taxes or Other Charges or Funds (i.e., use of Rents or refunds of Taxes or Other Charges or Funds to make distributions or payments to members/partners/shareholders of Owner or Borrower during the continuance of an Event of Default); (f) failure to pay charges for labor or materials or other charges that can create Liens on any portion of the Collateral Property unless such charges are the subject of a bona fide dispute in which the Owner or Borrower is contesting the amount or validity thereof, (g) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Collateral Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Mortgage or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any assignment of leases contained in the Mortgage; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs expenses reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Principal or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriationgross negligence or willful misconduct of Borrower, conversion Principal or misapplication in contravention Guarantor;
(iii) material physical waste of the Loan Documents Property;
(iv) the removal or disposal of any portion of the Property after an Event of Default;
(v) the misapplication or conversion by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Principal or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any RevenuesInsurance Proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of the Property, (DC) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (ED) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower failure to pay charges for labor or Operating Company fails to obtain Lender’s prior consent to materials or other charges or judgments that can create Liens on any voluntary intentional Transfer as required by this Agreement, portion of the Mortgage Loan Agreement or the Mortgages, as applicableProperty;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) the breach of the representation by Borrower that on the Closing Date, all Improvements at the Property were in the event of:material compliance with applicable laws; or
(ix) (A) Borrowerany termination of the Ground Lease by Borrower without Lender’s prior written consent, Mortgage Borrower(B) any rejection by Borrower (as debtor in possession in connection with a Bankruptcy Action or otherwise) of the Ground Lease, Senior Mezzanine Borrower(C) any termination of the Ground Lease by the Ground Lessor which termination is caused by Borrower interfering with the exercise of Lender’s cure rights under the Ground Lease (including, Operating Company deliberately failing to act to cure a non monetary default if so directed by Lender), or any Guarantor (D) if the Ground Lease is amended, modified or terminated without Lender’s prior written consent.
(a) Borrower or Principal filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor Principal under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage BorrowerPrincipal or Guarantor colludes with, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or otherwise assists such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company solicits or any Guarantor soliciting or causing causes to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company Borrower or any Guarantor Principal from any Person; (Cc) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor Principal filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it it, by any other Person, other than Lender, Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Dd) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor Principal consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral Principal or any portion thereof, other than at of the request of LenderProperty; (e) Borrower or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Principal making an assignment for the benefit of creditors (other than Lender)creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
; (ixii) if Borrowerthe first full monthly payment of principal and interest on the Note is not paid when due; (iii) if Borrower fails to permit on-site inspections of the Property, Senior Mezzanine Borrower or Mortgage Borrower fails to provide financial information, fails to maintain its status as a Special Purpose Entity or breaches comply with any material representation representation, warranty or warranty covenant set forth in Section 4.1.30 hereof or fails to appoint a new property manager upon the request of Lender as permitted under this Agreement, each as required by, and in accordance with, the terms and provisions of this AgreementAgreement or the Mortgage; and
(xiv) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior written consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien encumbering the Property; or (other than Permitted Encumbrancesv) encumbering if Borrower fails to obtain Lender’s prior written consent to any of the Properties, Senior Mezzanine Collateral or Collateral Transfer as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalMortgage.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender Tower C SPV agrees that it shall not enforce the liability and obligation of Borrower Coach to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except Coach Exculpated Party (as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lenderhereinafter defined), and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ sue for, seek or demand any deficiency money judgment against Borrower any direct or indirect member, manager, shareholder, partner, beneficiary or other owner of beneficial ownership interests in Coach, or any such action director, officer, agent, attorney, employee or proceeding undertrustee of any of the foregoing (each, a “Coach Exculpated Party” and, collectively, the “Coach Exculpated Parties”) under or by reason of, of or in connection with, the Note, with this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 18(a) shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced of Coach hereunder; or secured by any of the Loan Documents; (bii) impair the right of Lender Tower C SPV to name Borrower Coach as a party defendant in any action or suit for foreclosure and sale under the Pledge this Agreement; .
(cb) affect the validity or enforceability of or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to Coach agrees that it shall not enforce the liability and obligation of BorrowerTower C SPV to perform and observe the obligations contained in this Agreement (if any) by any action or proceeding against any Tower C SPV Exculpated Party (as hereinafter defined), by and shall not sue for, seek or demand any money judgment against any direct or otherwiseindirect member, to the extent manager, shareholder, partner, beneficiary or other owner of beneficial ownership interests in Tower C SPV, or any director, officer, agent, attorney, employee or trustee of any actual lossof the foregoing (each, damagea “Tower C SPV Exculpated Party” and, costcollectively, expense, liability, claim the “Tower C SPV Exculpated Parties”) under or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out reason of or in connection with the following:
this Agreement. The provisions of this Section 18(b) shall not, however, (i) fraud constitute a waiver, release or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company impairment of any obligation of Tower C SPV hereunder (if any); or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) impair the misappropriation, conversion right of Coach to name Tower C SPV as a party defendant in any action or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;suit under this Agreement.
(iiic) The provisions of this Section 18 shall survive the misappropriation, conversion termination or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 expiration of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Sources: Mta Project Documents
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the personal liability and obligation of Borrower Fee Holder or the Beneficial Interest Holder to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerBorrower or the Beneficial Interest Holder or the General Partner (collectively called the “Obligated Parties”) or any other partners or members thereof, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the CollateralProperty, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower the Obligated Parties or their respective partners or members only to the extent of Borrower’s their interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower the Obligated Parties or their respective partners or members in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower an Obligated Party (but not the members or partners thereof) as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage or sale under any other security agreement; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Mortgage or to exercise its remedies against all of the Collateral; Property, or (gvii) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrowerthe Obligated Parties, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty Recourse Liabilities set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital10.2 below.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, Collateral or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver[intentionally omitted]; (ev) [intentionally omitted]; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by the Pledge Agreement or to exercise its remedies against all of the Collateral; or (gvii) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) (collectively, “Lender’s Losses”) arising out of or in connection with any of the following:
following (iall such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”): (a) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with obtaining the execution and delivery Loan; (b) physical waste of the Loan Documents and/or Property or any portion thereof (other than acts committed by a third party non-affiliated property manager), or after an Event of Default the Loan;
(ii) the misappropriation, conversion removal or misapplication in contravention disposal of any portion of the Loan Documents Property (other than acts committed by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company a third party non-affiliated property manager); (c) any Proceeds paid by reason of any Insured Casualty or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards Award received in connection with a CondemnationCondemnation or other sums or payments attributable to the Property not applied in accordance with the provisions of the Loan Documents (other than acts committed by a third party non-affiliated property manager) (except to the extent that Borrower and Mortgage Borrower did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums or payments); (Dd) any all Rents of the Property received or security deposits collected by or on behalf of Borrower or Mortgage Borrower after an Event of Default and not applied to payment of Principal and interest due under the Note or the Mortgage Note pursuant to the terms of the Loan Documents or the Mortgage Loan Documents, and to the payment of actual and reasonable operating expenses of the Property, as they become due or payable (other than acts committed by a third party non-affiliated property manager) (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or any item similar judicial proceeding in which Borrower and Mortgage Borrower is legally prevented from directing the disbursement of Revenuesuch sums); (e) misappropriation (including failure to turn over to Lender or Mortgage Lender, from whatever source) as applicable, on demand following an Event of Default) of tenant security deposits and rents collected in advance, or of funds held by Borrower or Mortgage Borrower for the benefit of another party (Eother than acts committed by a third party non-affiliated property manager); (f) any distribution the failure to pay Taxes, provided that Borrower shall not be liable (A) to the extent funds to pay such amounts are available in the Tax and Insurance Subaccount and Lender or other payments made in connection with any part Mortgage Lender, as applicable, failed to pay same or has elected not to pay the same pursuant to Section 3.3 hereof or Section 3.3 of the Collateral Mortgage Loan Agreement, as applicable or Senior Mezzanine Collateral;
(iiiB) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one are insufficient to yield sufficient funds to pay such amounts; (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(vg) the breach of any representation, warranty, covenant or indemnification provision in any Loan Document concerning Environmental Laws or Hazardous Substances, including Sections 4.21 and 5.8, and clauses (viii) through (xi) of Section 5.30; (h) any representation or warranty made by Borrower in Section 4.1 shall be false or misleading in any material respect as of the Environmental Indemnity Agreement concerning environmental lawsdate made, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any breach of the Properties which are not delivered to Mortgage Lender upon covenants set forth in Section 5.13 (other than a foreclosure breach of any of the Properties or action covenants described in lieu thereofclauses (x) and (xxi) (with respect to unsecured trade payables) set forth in the definition of “Special Purpose Bankruptcy Remote Entity” on Schedule 5, except to if the extent any such security deposits were applied in accordance with the terms and conditions of any same occurs as a result of the Leases prior to the occurrence economic performance of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency lawCollateral); (Bi) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliatesdirect or indirect Affiliates taking any action or making any omission intended or reasonably likely to hinder, agents delay, impair or employees colludes with prevent Lender in or such other Personfrom enforcing any and all of its rights and remedies under or pursuant to the Loan Documents or at law or in equity (unless the same is brought in good faith and is determined in favor of Borrower or Guarantor pursuant to a final, non-appealable judgment of a court of competent jurisdiction); (j) the termination of the Management Agreement or the removal of the then-current Manager as property manager thereunder without Lender’s consent; (k) Borrower, ’s or Mortgage Borrower, Senior Mezzanine Borrower, Operating Company ’s misappropriation or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability failure to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower to the appropriate parties the amounts due and owing to such parties for which a disbursement request was made pursuant to Section 3.13 hereof or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 3.13 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, as applicable, where such disbursement was made directly to Borrower or Mortgage Borrower (provided, however, there shall be no liability with respect to a particular disbursement in the Pledge Agreement or the Mortgages. Notwithstanding anything event that evidence reasonably satisfactory to Lender has been delivered which shows that such disbursement has been applied to the contrary under this Agreement, neither any present payment of sums for which such disbursement was requested); (l) Borrower’s or future Affiliate Mortgage Borrower’s misappropriation of Borrower Net Liquidation Proceeds After Debt Service; or (other than Guarantor, m) Borrower’s making a distribution to its equity owners during the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent existence of or in any Borrower or an Event of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalDefault.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Loan Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure actionexercise rights and remedies under the Uniform Commercial Code, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Loan Agreement and the other Loan Documents, or in the Collateral, Collateral or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Loan Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Loan Agreement or the other Loan Documents. The provisions of this Section section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under this Loan Agreement or the Pledge Agreementother Loan Documents; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by under this Loan Agreement or the Pledge Agreement other Loan Documents or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (ge) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following (all such liability and obligation of Borrower for any or all of the following being referred to herein as “Borrower’s Recourse Liabilities”):
(a) fraud, material misrepresentation, willful misconduct or gross negligence by or on behalf of Borrower, Guarantor, any Affiliate of Borrower or Guarantor or Manager, or any of their respective agents or representatives in connection with the Loan, including by reason of any claim under the Racketeer Influenced and Corrupt Organizations Act (RICO);
(i) fraud the misappropriation or intentional misrepresentation misapplication of any of the following funds to the extent actually received by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor Affiliate of Borrower: (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Mortgaged Property (B) any awards or other amounts received in connection with the execution and delivery condemnation of all or a portion of the Loan Documents and/or Mortgaged Property or (ii) any Receipts from the LoanCollateral which Borrower fails to deposit or cause to be deposited into the Deposit Account in accordance with Section 3.03;
(iic) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior written consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected Material Modification with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any actions set forth in clauses (xvi)-(xxxi) of the Properties or action in lieu thereofdefinition of “Material Modification”, except as and to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;required under Section 7.12 hereof; and
(viii) in the event of:
(Ad) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails ’s failure to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the MortgagesBankruptcy Remote Entity. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Loan Agreement, the Note or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Secured Obligations or to require that all collateral Collateral shall continue to secure all of the Indebtedness Secured Obligations owing to Lender in accordance with the Loan Documents., and (B) the Secured Obligations shall be fully recourse to Borrower in the event
(i) Borrower fails to obtain Lender’s prior written consent to (x) any Change of Control or (y) any Transfer of any direct or indirect interest in the Asset or any interest therein as required by this Loan Agreement; (ii) Borrower files a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (iii) the filing of an involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any other Person in which Borrower or any Affiliate of Borrower or Manager colludes with or otherwise assists such Person, and/or Borrower or any Affiliate of Borrower or Manager solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower or Guarantor by any Person; (iv) Borrower and/or any Affiliate of Borrower or Manager files an answer consenting to, or otherwise acquiescing in, or joining in, any involuntary petition filed against Borrower or Guarantor by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (v) Borrower, Manager or any Affiliate, officer, director or representative which Controls Borrower or Manager consents to, or acquiesces in, or joins in, an application for the appointment of a custodian, receiver, trustee or examiner for Borrower or the Asset;
Appears in 1 contract
Sources: Loan and Security Agreement (TPG RE Finance Trust, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of any Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against such Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in all or any of the CollateralProperties, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, that except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against a Borrower only to the extent of such Borrower’s 's interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it Lender shall not sue ▇▇▇ for▇, seek or demand any deficiency judgment against a Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, the Note, this Agreement, the Pledge Agreement or the other with any Loan DocumentsDocument. The provisions of this Section shall notnot however, however,
(ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower one or more Borrowers as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreementany Mortgage; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; , (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the Assignment of Leases; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by any Mortgage or to exercise its remedies against all or any of the CollateralProperties; or (gvii) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrowers, by money judgment or otherwise, to the extent of any actual loss, damage, cost, cost expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:
: (ia) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Borrower or any Guarantor guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
; (ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(vb) the breach of any representation, warranty, covenant or indemnification provision in any Loan Document concerning Environmental Laws or Hazardous Substances, including Sections 4.19 and 5.7 and in the Environmental Indemnity Agreement concerning environmental lawsIndemnification Agreements; (c) physical waste or after an Event of Default the removal or disposal of any portion of any Property; (d) the misapplication or conversion by any Borrower of (x) any Proceeds paid by reason of any Insured Casualty, hazardous substances and asbestos and (y) any indemnification Award received in connection with a Condemnation, or (z) any Rents, refund of Taxes or amounts in any Subaccount (including any distributions or payments to members/partners/shareholders of any Borrower during a period which Lender with respect thereto in either document;
did not receive the full amounts required to be paid to Lender under the Loan Documents); (vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(viie) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Mortgage or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
; and (viiif) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing Borrowers' indemnifications of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty Lender set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital9.1.3.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Lodgian Inc)
Exculpation. (a) Subject to Except as otherwise provided in this Section 9.4 and comparable provisions in the qualifications belowPledge Agreement or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Note or the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower or any of Borrower's Affiliates, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under this Agreement, the Note, the Pledge Agreement, the other Loan Documents, and the Collateral, and any other Collateral created by this Agreement, the Note, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral and in any other collateral given to Lender, and . Lender, by accepting the Note, this Agreement, the Pledge Agreement Note and the other Loan DocumentsPledge Agreement, agrees that it shall not ▇▇▇ not, except as otherwise provided in this Section 9.4 and comparable provisions or in the Pledge Agreement, sue for, seek or demand any deficiency judgment against Borrower or ▇▇▇ of Borrower's Affiliates in any such action or proceeding underproceeding, under or by reason of, of or under or in connection withwith this Agreement, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of this Agreement, the Note, the Pledge Agreement or the other Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge Agreement; (ciii) except as set forth in this Section 9.4, affect the validity or enforceability of any indemnity (including, without limitation, the Environmental Indemnity), guaranty (including, without limitation, the Guaranty), master lease or any Guaranty similar instrument made in connection with this Agreement, the Note, the Pledge Agreement, or the other Loan or any of the rights and remedies of Lender thereunderDocuments; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of impair the right of Lender to enforce Sections 4.1.9, 4.1.29, 5.1.9 and 5.2.8 hereof; or (vi) impair the liability and obligation right of Borrower, by money Lender to obtain a deficiency judgment or otherwiseother judgment on the Note against Borrower to the extent necessary to (A) preserve or enforce its rights and remedies against the Collateral or (B) obtain any Insurance Proceeds or Awards to which Lender would otherwise be entitled under the terms of this Agreement or the Pledge Agreement; provided however, Lender shall only enforce such judgment to the extent of any actual lossamounts Lender is entitled to under the terms of this Agreement from such Insurance Proceeds and/or Awards.
(b) Notwithstanding the provisions of this Section 9.4 to the contrary, damage, cost, expense, liability, claim or other obligation incurred by Borrower shall be personally liable to Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with for the following:
Losses Lender incurs to the extent due to: (i) fraud or intentional material misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and the delivery of this Agreement, the Note, the Pledge Agreement, the other Loan Documents and/or the Loan;
or any Mortgage Loan Document; (ii) the misappropriation, conversion Borrower's or Pledgor's or Operating Lessee's or Mortgage Borrower's misapplication in contravention or misappropriation of the Loan Documents Rents received by Borrower, Mortgage Borrower, Senior Mezzanine BorrowerPledgor, Operating Company Lessee or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item after the occurrence of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Felcor Lodging Trust Inc)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in the Collateral, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, Purchaser agrees that it shall does not ▇▇▇ for, seek have and will not have any claims or demand any deficiency judgment causes of action against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section shall not, however,
(a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge Agreement; (c) affect the validity or enforceability of Seller Knowledge Individual or any Guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omitted; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerSeller Party, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgagestransactions contemplated hereby. Purchaser agrees to look solely to Seller and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, as applicable;
(vii) or for the performance of any security depositsof the covenants, advance deposits warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to enforce any other deposits collected personal obligation against any Seller Party with respect to any matters arising out of or in connection with this Agreement or the transactions contemplated hereby. Without limiting the generality of the Properties foregoing provisions of this Section 15.19, Purchaser hereby unconditionally and irrevocably waives any and all claims and causes of action of any nature whatsoever it may now or hereafter have against a Seller Party, and hereby unconditionally and irrevocably releases and discharges all Seller Parties from any and all liability whatsoever which are may now or hereafter accrue in favor of Purchaser against any Seller Party in connection with or arising out of this Agreement or the transactions contemplated hereby. Seller agrees that it does not delivered have and will not have any claims or causes of action against the ▇▇▇▇▇▇ ▇▇▇ (“Purchaser’s Knowledge Individual”) or any affiliates or subsidiaries of Purchaser (“Purchaser Party”), arising out of or in connection with this Agreement or the transactions contemplated hereby. Seller agrees to Mortgage Lender upon a foreclosure look solely to Purchaser and its assets for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the Properties covenants, warranties or action in lieu thereofother agreements contained herein, except and further agrees not to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to sue or otherwise acquiescing in or joining in seek to enforce any involuntary petition filed personal obligation against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) Purchaser Party with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any matters arising out of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with this Agreement or 29 the Loan Documentstransactions contemplated hereby. Neither Without limiting the negative capital account generality of the foregoing provisions of this Section 15.19, Seller hereby unconditionally and irrevocably waives any and all claims and causes of action of any Affiliate nature whatsoever it may now or hereafter have against Purchaser’s Knowledge Individual or a Purchaser Party, and hereby unconditionally and irrevocably releases and discharges all Purchaser Parties from any and all liability whatsoever which may now or hereafter accrue in favor of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed Seller against any such negative capital account Purchaser Party in connection with or obligation to restore, contribute arising out of this Agreement or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 transactions contemplated hereby. The provisions of this Section 15.19 shall survive the Bankruptcy Code to file a claim for termination of this Agreement and the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.Closing.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, or in the CollateralProperty (or any portion thereof), the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Security Instrument and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Security Instrument or the other Loan Documents. The provisions of this Section shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (bii) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementSecurity Instrument; (ciii) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of any assignment of leases contained in the Security Instrument or any other Loan Document; or (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Security Instrument or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the Collateral; Property (or any portion thereof). 71
(gb) constitute a waiver of Nothing contained herein shall in any manner or way release, affect or impair the right of Lender to enforce the liability recover, and obligation of BorrowerBorrower shall be fully and personally liable and subject to legal action, by money judgment or otherwise, to the extent of for any actual loss, damage, cost, expense, liabilitydamage, claim or other obligation (including reasonable attorneys' fees and court costs) incurred or suffered by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional willful misrepresentation by Borrower or any of its affiliates, or Guarantor or any agent, employee or other person with actual or apparent authority to make statements or representations on behalf of Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any affiliate of Borrower or any Guarantor in connection with the execution and delivery of Loan (“apparent authority” meaning such authority as the Loan Documents and/or principal knowingly or negligently permits the Loanagent to assume, or which he holds the agent out as possessing);
(ii) the misappropriationgross negligence or willful misconduct of Borrower or Guarantor, conversion or misapplication any affiliate, agent, or employee of the foregoing;
(iii) material physical waste of the Property (or any portion thereof);
(iv) the removal or disposal of any portion of the Property in contravention violation of the terms of the Loan Documents Documents;
(v) the misapplication, misappropriation, or conversion by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any RevenuesInsurance Proceeds paid by reason of any loss, damage or destruction to the Property (or any portion thereof), (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a CondemnationCondemnation of all or a portion of the Property, (C) any Rents or other Property income or collateral proceeds, or (D) any Rents paid more than one month in advance (including, but not limited to, security deposits);
(vi) following the occurrence of an Event of Default, the failure to either apply rents or security deposits other Property income, whether collected before or after such Event of Default, to the ordinary, customary, and necessary expenses of operating the Property or, upon demand, to deliver such rents or other Property income to Lender;
(vii) failure to maintain insurance or to pay taxes and assessments, or to pay charges for labor or materials or other charges or judgments that can create Liens on any item portion of Revenue, from whatever source) the Property (unless Lender is escrowing funds therefor and fails to make such payments or has taken possession of the Property following an Event of Default, or (E) any distribution has received all Rents from the Property applicable to the period for which such insurance, taxes or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateralitems are due, and thereafter fails to make such payments);
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(viiviii) any security deposits, advance deposits or any other deposits collected with respect to the Property (or any of the Properties portion thereof) which are not delivered to Mortgage Lender upon a foreclosure of the Property (or any of the Properties portion thereof) or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viiiix) Borrower fails to permit on-site inspections of any Individual Property, or fails to appoint a new property manager upon the request of Lender as permitted under this Agreement, each as required by, and in accordance with, the terms and provisions of this Agreement or the Security Instrument;
(x) any failure by Borrower to comply with any of the representations, warranties or covenants set forth in Sections 4.1.37 or 5.1.19 hereof;
(xi) any failure by Borrower to cooperate with Lender in instituting the cash management system provided for in the event of:Loan Documents, including, without limitation, setting up the Clearing Account or the Cash Management Account as and when required pursuant to this Agreement; or
(xii) the inability of Borrower to complete the Restoration of the Property in accordance with all applicable Legal Requirements (including the inability to obtain a variance or special use permit to 72 allow Restoration of the Property) as required pursuant to Section 6.4 hereof after a Casualty or Condemnation, due to the existence of any use, improvement or other condition at or on the Property that is nonconforming or legally nonconforming under applicable Legal Requirements (including zoning, building or land use laws, ordinances or regulations).
(c) Notwithstanding anything to the contrary in this Agreement, the Note or any of the other Loan Documents,
(i) Borrower and any general partner of Borrower shall be personally liable for the Debt if (A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower fails to obtain Lender’s prior written consent to any Transfer as required by this Agreement or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency lawSecurity Instrument; (B) Borrower fails to obtain Lender’s prior written consent to any Indebtedness or voluntary Lien encumbering the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Property (or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Personportion thereof); (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or Borrower shall at any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making time hereafter make an assignment for the benefit of creditors its creditors; (other than Lender)D) Borrower fails to maintain its status as a Special Purpose Entity or comply with any representation, warranty or admittingcovenant set forth in Section 4.1.30 hereof; (E) Borrower admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
; (ixF) if Borrowerintentionally omitted; (G) Borrower files, Senior Mezzanine consents to, or acquiesces in a petition for bankruptcy, insolvency, dissolution or liquidation under the Bankruptcy Code or any other Federal or State bankruptcy or insolvency law, or there is a filing of an involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law in which Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity Guarantor colludes with, or breaches otherwise assists any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or party in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrowersuch filing, or in solicits or causes to be solicited petitioning creditors for any other Affiliate of involuntary petition against Borrower in from any other Affiliate of Borrower, nor party; or (H) the Property or any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower part thereof shall at any time hereafter become property of the estate or an asset in (1) a voluntary bankruptcy, insolvency, receivership, liquidation, winding up, or other similar type of proceeding, or (2) an involuntary bankruptcy or insolvency proceeding (other than one filed by Lender) that is not dismissed within sixty (60) days of filing.
(d) Nothing herein shall be deemed to be the property or an asset constitute a waiver by Lender of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section Sections 506(a), 506(b), 1111(b) or any other provisions provision of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan DocumentsDebt.
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of any Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against such Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest and rights under the Note, this Agreement, the Pledge Agreement and the other Loan Documents, or in all or any of the CollateralProperties, the Rents or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against a Borrower only to the extent of such Borrower’s interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan Documents. The provisions of this Section 10.1 shall not, however,
, (ai) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan DocumentsDocument; (bii) impair the right of Lender to name Borrower one or more Borrowers as a party defendant in any action or suit for foreclosure and sale under any Mortgage and/or the Pledge Agreement; (ciii) affect the validity or enforceability of any of the Loan Documents or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (div) impair the right of Lender to obtain the appointment of a receiver; (ev) intentionally omittedimpair the enforcement of the assignments of leases and rents; (fvi) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement or to commence any other appropriate action or proceeding in order for Lender to fully realize the security granted by any Mortgage and/or the Pledge Agreement or to exercise its remedies against all or any of the CollateralProperties; or (gvii) constitute a waiver of the right of Lender to enforce the liability and obligation of BorrowerBorrowers, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:following but specifically excluding any special, exemplary, punitive or consequential damages except to the extent actually payable to a third party (all such liability and obligation of Borrowers for any or all of the following being referred to herein as “Borrowers’ Recourse Liabilities”):
(ia) fraud fraud, willful misconduct, misrepresentation or intentional misrepresentation failure to disclose a material fact by or on behalf of any Borrower, Mortgage BorrowerGuarantor, Senior Mezzanine Borrowerany Affiliate of any Borrower or Guarantor, Operating Company or any Guarantor of their respective agents or representatives made in connection with the execution Loan, including by reason of any claim under the Racketeer Influenced and delivery of the Loan Documents and/or the LoanCorrupt Organizations Act (RICO);
(iib) the misappropriationforfeiture by any Borrower of any Property, conversion or misapplication in contravention any portion thereof, because of the Loan Documents conduct of criminal activity by or on behalf of any Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Sole Member or Guarantor or any Guarantor of their respective agents or representatives in connection therewith;
(c) physical waste of any funds Property or any portion thereof (including the abandonment of Borrowerany Property), Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, after an Event of Default the removal or disposal of any portion of any Property;
(Ad) any Revenues, (B) Proceeds paid by reason of any Net Liquidation Proceeds Casualty or Insurance Proceeds, (C) any Awards Award received in connection with a CondemnationCondemnation or other sums or payments attributable to any Property not applied in accordance with the provisions of the Loan Documents (except to the extent that a Borrower did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct disbursement of such sums or payments);
(De) all Rents of any Property received or collected by or on behalf of any Borrower after an Event of Default and not deposited into the Cash Management Account, applied to payment of Principal and interest due under the Notes, or applied to the payment of actual and reasonable operating expenses of any Property, as they become due or payable (except to the extent that such application of such funds is prevented by bankruptcy, receivership, or similar judicial proceeding in which such Borrower is legally prevented from directing the disbursement of such sums);
(f) any Rents Borrower’s breach of Section 5.9.3(vi) hereof;
(g) the failure of any Borrower to comply with any material obligations of such Borrower, as lessor under any Lease;
(h) misappropriation or security deposits conversion by or on behalf of any Borrower (or any item of Revenue, from whatever source) including failure to turn over to Lender on demand following an Event of Default) of any gross revenues 66 (including Rents, or (E) advance deposits, any distribution or other payments made deposits, rents collected in connection with advance, and funds held by any part Borrower for the benefit of the Collateral or Senior Mezzanine Collateralanother party);
(iiii) the misappropriation, conversion failure to pay Property Taxes in accordance with Section 5.2 hereof;
(j) the failure to pay charges for labor or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company materials or other charges that can create Liens on any Guarantor portion of any Property;
(k) any security deposits or Rents paid more than one (1) month in advance;
(iv) any act including letters of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security depositscredit), advance deposits or any other deposits collected by or on behalf of Borrowers with respect to any of the Properties which are not delivered to Mortgage Lender upon in accordance with the provisions of the Loan Documents;
(l) the failure to obtain and maintain the fully paid for Policies in accordance with Section 7.1.1 hereof except to the extent that (A) the Properties did not generate sufficient cash flow during the period in question to pay all of Borrowers’ current and/or past due liabilities or (B) (i) sufficient funds allocated to Insurance Premiums are in the Insurance Subaccount to make such payment, (ii) Lender is obligated to (and has the right to) pay such Insurance Premiums pursuant to Section 3.3 hereof, and (iii) and Lender has failed to make such payments);
(m) any out-of-pocket cost or expense incurred by ▇▇▇▇▇▇ in connection with the enforcement of its rights and remedies hereunder (including, without limitation, any transfer, stamp, recording or similar taxes incurred by Lender or its designee in connection with a foreclosure of the Mortgage) or any other Loan Document; and/or
(n) a breach of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty representations set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails any “Recycled SPE Certificate” delivered to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or Lender in connection with the Loan Documents. Neither or a breach of the negative capital account representation set forth in Section 4.1(b) hereof or a breach of any Affiliate of Borrower the covenants set forth in BorrowerSection 5.12 hereof, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against than any such negative capital account or obligation to restore, contribute or loan capital.
(b) breach that is a Springing Recourse Event. Notwithstanding anything to the contrary in this Agreement, the Note Agreement or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender Debt in accordance with the Loan Documents, and (B) Lender’s agreement not to pursue personal liability of Borrowers as set forth above SHALL BECOME NULL AND VOID and shall be of no further force and effect, and the Debt shall be fully recourse to Borrowers in the event that one or more of the following occurs (each, a “Springing Recourse Event”):
(i) an Event of Default described in Section 8.1(d) hereof shall have occurred;
(ii) a breach of any of the representations set forth in any “Recycled SPE Certificate” delivered to Lender in connection with the Loan or a breach of the representation set forth in Section 4.1(b) hereof or a breach of the covenants set forth in Section 5.12 hereof, and in any of the foregoing instances, such breach is cited by a court of competent jurisdiction as a factor (or words of similar import) in the substantive consolidation of the assets of a Borrower with those of another Person;
(iii) any Borrower files a voluntary petition under the Bankruptcy Code or files a petition for bankruptcy, reorganization or similar proceeding pursuant to any other Federal or state bankruptcy, insolvency or similar law;
(iv) any Borrower is substantively consolidated with any other Person; unless such consolidation was involuntary and not consented to by such Borrower, Sole Member or Guarantor and is discharged, stayed or dismissed within thirty (30) days following the occurrence of such consolidation;
(v) the filing of an involuntary petition against any Borrower under the Bankruptcy Code or an involuntary petition for bankruptcy, reorganization or similar proceeding pursuant to any other Federal or state bankruptcy, insolvency or similar law by any other Person in which (x) such Borrower or any Affiliate, officer, director or representative which, directly or indirectly, Controls any Borrower colludes with or otherwise assists such Person, and/or (y) such Borrower or any Affiliate, officer, director or representative which, directly or indirectly, Controls any Borrower solicits or causes to be solicited petitioning creditors for any involuntary petition against any Borrower by any Person;
(vi) any Borrower or any Affiliate, officer, director or representative which, directly or indirectly, Controls any Borrower files an answer consenting to, or otherwise acquiescing in, or joining in, any involuntary petition filed against it by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law;
(vii) any Borrower or any Affiliate, officer, director or representative which, directly or indirectly, Controls any Borrower consents to, or acquiesces in, or joins in, an application for the appointment of a custodian, receiver, liquidator, trustee or examiner for such Borrower or any portion of the Property owned by such Borrower;
(viii) any Borrower makes an assignment for the benefit of creditors or admits, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if any Lease is amended, modified or terminated without ▇▇▇▇▇▇’s prior written consent in violation of the Loan Documents;
(x) if Guarantor, any Borrower or any Affiliate of any of the foregoing, in connection with any enforcement action or exercise or assertion of any right or remedy by or on behalf of Lender under or in connection with the Notes, the Mortgages or any other Loan Document, seeks a defense, judicial intervention or injunctive or other equitable relief of any kind or asserts in a pleading filed in connection with a judicial proceeding any defense against Lender or any right in connection with any security for the Loan; excluding any such defense, judicial intervention or other equitable relief that is determined in a final, non-appealable judgment by a court of competent jurisdiction to have been raised by any Borrower, Guarantor or any Affiliate of the foregoing in good faith; 68
(i) any of Borrowers, Sole Member, Guarantor or any Affiliate of any of them causes any Borrower to amend or otherwise modify its organizational documents in order to amend or repeal its election to be governed by Article 8 of the UCC, or any termination or cancellation of the limited liability company membership certificate evidencing Sole Member’s one hundred percent (100%) ownership interest in each Borrower, as delivered to Lender on the Closing Date in connection with the Pledge Agreement; and/or
(xi) if any Borrower, Sole Member, Guarantor or any Affiliate of any of the foregoing asserts any defense to, or seeks to delay, interfere with, restrain, enjoin or prevent (including by seeking a temporary restraining order or other injunctive relief or any declaratory judgement) ▇▇▇▇▇▇’s exercise of any remedies under the Pledge Agreement (including the conducting of any UCC sale of the Collateral) in whole or in part on the basis that the exercise of such remedy by ▇▇▇▇▇▇ should not be permitted because ▇▇▇▇▇▇ holds a mortgage lien on the property to secure the Loan and the exercise of such remedy violates or is inconsistent with any Borrower’s right to redeem the Property under applicable New York statutes governing the foreclosure of mortgages or under common law (including under any so called “equity of redemption” under common law) or any public policy relating to any of the foregoing.
Appears in 1 contract
Sources: Loan Agreement (GTJ Reit, Inc.)
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇s▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(iv) the removal or disposal of any portion of the Property after an Event of Default; 146
(v) the misapplication or conversion by Borrower of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to the Property, (B) any Awards received in connection with a Condemnation of all or a portion of the Property, (C) any Rents following an Event of Default, or (D) any Rents paid more than one month in advance;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower failure to pay charges for labor or Operating Company fails to obtain Lender’s prior consent to materials or other charges that can create Liens on any voluntary intentional Transfer as required by this Agreement, portion of the Mortgage Loan Agreement or the Mortgages, as applicableProperty;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;; or
(viii) the breach of any representation, warranty, covenant or indemnification provision in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Guaranty of Completion or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing Guaranty of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become dueRecourse Carveouts;
(ix) if Borrower(A) a breach or default by Borrower under any condition or obligation contained in the Ground Lease is not cured within any applicable cure period provided therein, Senior Mezzanine Borrower (B) there occurs any event or Mortgage Borrower fails condition that gives the Ground Lessor under the Ground Lease a right to maintain its status as a Special Purpose Entity terminate or breaches cancel the Ground Lease, or (C) the Ground Lease shall be surrendered or the Ground Lease shall be terminated or cancelled for any material representation reason or warranty set forth under any circumstances whatsoever, or (D) any of the terms, covenants or conditions of the Ground Lease shall in Section 4.1.30 any manner be modified, changed, supplemented, altered, or amended without the prior written consent of this AgreementLender; andor
(x) if Borrower, Mortgage Borrower, Senior Mezzanine (A) a breach or default by Borrower or Operating Company fails Storage Facility Tenant under any condition or obligation contained in the Storage Facility Master Lease occurs, (B) there occurs any event or condition that gives the Borrower or Storage Facility Tenant under the Storage Facility Master Lease a right to obtain terminate or cancel the Storage Facility Master Lease, (C) the Storage Facility Master Lease shall be surrendered or the Storage Facility Master Lease shall be terminated or cancelled for any reason or under any circumstances whatsoever without the prior written consent of Lender’s prior consent to any voluntary Indebtedness , or (other than (xD) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Propertiesterms, Senior Mezzanine Collateral covenants or Collateral as required by this Agreement, conditions of the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or Storage Facility Master Lease shall in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liabilitymanner be modified, directly or indirectlychanged, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrowersupplemented, altered, or in any other Affiliate amended without the prior written consent of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Lender. Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, (A) 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt secured by the Mortgage or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender in accordance with the Loan Documents.147
(a) Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (b) the filing of an involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, in which Borrower colludes with, or otherwise assists such Person, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any Person; (c) Borrower filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (d) Borrower consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Property; or (e) Borrower making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due; (ii) if the first full monthly payment of interest on the Note is not paid when due; ;
Appears in 1 contract
Exculpation. (a) Subject Notwithstanding anything to the contrary contained in this Agreement, the Note, the Mortgage or the other Loan Documents but subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Property, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage as long as Lender shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower; (c) affect the validity or enforceability of or any Guaranty guaranty made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any of the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower if necessary in order to fully realize the security granted by the Pledge Agreement Mortgage or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperty; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds willful misconduct of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgage concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(viiv) if Borrower, Mortgage Borrower, Senior Mezzanine the removal or disposal by Borrower or Operating Company fails any Affiliate of Borrower of any portion of the Property after an Event of Default (unless otherwise permitted under the Loan Documents);
(v) the misapplication or conversion by Borrower of (A) any Insurance Proceeds paid by reason of any loss, damage or destruction to obtain Lender’s prior consent to any voluntary intentional Transfer as required the Property, which are not applied by Borrower in accordance with this Agreement, (B) any Awards received in connection with a Condemnation of all or a portion of the Mortgage Loan Agreement Property, which are not applied by Borrower in accordance with this Agreement, (C) any Rents following an Event of Default, (D) any Rents paid more than one month in advance, or (E) any amounts paid to Borrower by tenants of the MortgagesProperty specifically for Taxes and Other Charges, as applicablewhich are not applied by Borrower to pay such Taxes and Other Charges or in accordance with this Agreement;
(vi) failure to pay charges incurred by Borrower or any Affiliate of Borrower for labor or materials that can create Liens on any portion of the Property, subject to any right to contest such charges pursuant to the terms of this Agreement; and
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties Property or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;.
(viiii) in the event of:
(Aa) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Borrower filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (Bb) the filing by any Person of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trusteewhich Borrower colludes with, or examiner for Borrowerotherwise assists such Person, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.or
Appears in 1 contract
Exculpation. (a) Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, or in the CollateralProperties, the Rents, or any other collateral given to Lender pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s 's interest in the Collateral Properties, in the Rents and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement Mortgages and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgages or the other Loan Documents. The provisions of this Section section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower or any Individual Borrower as a party defendant in any action or suit for foreclosure and sale under any of the Pledge AgreementMortgages; (c) affect the validity or enforceability of any guaranty made by a Person other than Borrower or any Guaranty made an Individual Borrower in connection with the Loan or any of the rights and remedies of the Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of any of the Assignments of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment against Borrower or any Individual Borrower in order to fully realize the security granted by each of the Pledge Agreement Mortgages or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against all of the CollateralProperties; or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of Borrower or any Individual Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation incurred by Lender (including attorneys’ ' fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company any Individual Borrower or any Guarantor guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriation, conversion gross negligence or misapplication in contravention willful misconduct of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor of any funds of Individual Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or (E) any distribution or other payments made in connection with any part of the Collateral or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement or in the Mortgages concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(iv) the removal or disposal of any portion of the Properties after an Event of Default;
(v) the misapplication or conversion by Borrower or any Individual Borrower of (A) any insurance proceeds paid by reason of any loss, damage or destruction to the Properties, (B) any Awards or other amounts received in connection with the condemnation of all or a portion of the Properties, or (C) any Rents following an Event of Default;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower failure to pay charges for labor or Operating Company fails materials or other charges resulting in a Lien on any portion of the Properties prior to obtain Lender’s prior consent to any voluntary intentional Transfer as required the Lien created by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicableDocuments;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;; and
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing 's indemnification of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty Lender set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capitalSECTION 9.2 hereof.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Capstar Hotel Co)
Exculpation. (a) Subject to the qualifications belowset forth in this Section 10.22, Lender neither Agent nor Lenders shall not enforce the liability and obligation of Borrower to perform and observe the obligations (including, without limitation, those payment and performance obligations which constitute the Debt) contained in the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against Borrower, except that Lender Agent may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding to enable Lender and each Noteholder Agent to enforce and realize upon its interest under the Note, this Agreement, the Pledge Agreement Mortgage and the other Loan Documents, or in the CollateralProperty, the Rents or any other collateral given to Lender Agent and/or Lenders pursuant to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against Borrower only to the extent of Borrower’s interest in the Collateral Property, in the Rents and in any other collateral given to LenderAgent and/or Lenders, and LenderLenders, by accepting the Note, this Agreement, the Pledge Agreement Mortgage, and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, under or by reason of, of or under or in connection with, with the Note, this Agreement, the Pledge Agreement Mortgage or the other Loan Documents. The provisions of this Section shall not, however,
, (a) constitute a waiver, release or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender Agent or Lenders to name Borrower as a party defendant in any action or suit for foreclosure and sale under the Pledge AgreementMortgage; (c) affect the validity or enforceability of any guaranty or any Guaranty indemnification agreement made in connection with the Loan or any of the rights and remedies of Lender Agent or Lenders thereunder; (d) impair the right of Lender Agent or Lenders to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment of Leases; (f) constitute a prohibition against Lender Agent or Lenders to seek a deficiency judgment against Borrower in order to fully realize on any security given by Borrower in connection with the security granted by the Pledge Agreement Loan or to commence any other appropriate action or proceeding in order for Lender Agent or Lenders to exercise its remedies against all of the Collateralsuch security; or (g) constitute a waiver of the right of Lender Agent or Lenders to enforce the liability and obligation of Borrower, by money judgment or otherwise, to the extent of any actual loss, damage, cost, expense, liability, claim or other obligation to the extent actually incurred by Lender Agent or Lenders (including reasonable attorneys’ fees and costs reasonably incurred) arising out of or incurred in connection with the following:
(i) fraud or intentional any material and willful misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company Borrower or any Guarantor in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriationremoval or disposal by, conversion or misapplication in contravention on behalf of Borrower or Guarantor, of any portion of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor Property during the continuance of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Default, or Default (E) any distribution or other payments made than in connection with any part the ordinary course of the Collateral or Senior Mezzanine Collateralbusiness);
(iii) the misappropriationmisappropriation or conversion by Borrower of (A) any Proceeds paid by reason of a Casualty, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company (B) any Award received in connection with a Condemnation of all or any Guarantor portion of the Property, or (C) any security deposits or Rents paid more than one (1) month in advanceduring the continuance of an Event of Default;
(iv) any act a breach of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantorthe covenant set forth in Section 4.2.12(a);
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties Property which are not delivered to Mortgage Lender Agent upon a foreclosure of any of the Properties or action in lieu thereofForeclosure, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases or other applicable agreements prior to such Foreclosure;
(vi) intentional physical waste or willful misconduct by or on behalf of Borrower or Guarantor which results in physical waste to the occurrence Property;
(vii) any material breach by Borrower of (A) Section 3.1.23(c)(ii) or (iv), or (B) Section 3.1.23(c)(xiv) or (xx) which, in either case under this subsection (B), results in a substantive consolidation of the Event assets of Default that gave rise to such foreclosure or action in lieu thereof;Borrower with the assets of another Person; and
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other Person, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making an assignment for the benefit of creditors (other than Lender), or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain LenderAgent’s prior written consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any of the Properties, Senior Mezzanine Collateral or Collateral as required by this Agreement, the Senior Mezzanine Loan Agreement, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything to the contrary under this Agreement, neither any present or future Affiliate of Borrower (other than Guarantor, a Transfer to the extent provided required by Article VIII hereof or Article VI of the Mortgage, and in each case, excluding Permitted Transfers, Permitted Encumbrances and any other Lien expressly permitted under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither For the negative capital account avoidance of doubt, a Transfer resulting from the exercise of Agent and/or Lenders’ rights under the Loan Documents or the consummation of any Affiliate remedial or enforcement action by the Agent of Borrower in Borrowerthe collateral for the Loan, or in including, without limitation, any other Affiliate foreclosure, deed-in-lieu of Borrower in any other Affiliate of Borrower, nor any obligation foreclosure and the exercise of any Affiliate rights of Borrower Agent and/or Lenders under the Mortgage (collectively, a “Foreclosure”), shall not constitute a Transfer in any Borrower to restore a negative capital account violation of Article VIII hereof or to contribute or loan capital to any Borrower or to any other Affiliate Article VI of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Mortgage. Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Lender (A) neither Agent nor Lenders shall not be deemed to have waived any right which Lender Agent and/or Lenders may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Indebtedness Debt or to require that all collateral shall continue to secure all of the Indebtedness Debt owing to Lender Agent and Lenders in accordance with the Loan Documents, and (B) the Debt shall be fully recourse to Borrower in the event that: (1) Borrower files a voluntary petition under the Bankruptcy code or any other Federal or state bankruptcy or insolvency law; (2) an Affiliate which Controls, directly or indirectly, Borrower files, or joins in the filing of, an involuntary petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or solicits or causes to be solicited petitioning creditors for any involuntary petition against Borrower from any person; (3) Borrower files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law in which Borrower colludes with, or otherwise assists, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; or (4) any Affiliate which Controls Borrower consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for Borrower or any portion of the Property.
Appears in 1 contract
Exculpation. (a) Subject Notwithstanding anything herein or in any other Loan Document to the qualifications belowcontrary, Lender Mortgagee shall not enforce the liability and obligation of Borrower Mortgagor or (a) if Mortgagor is a partnership, its constituent partners or any of their respective partners, (b) if Mortgagor is a trust, its beneficiaries or any of their respective Partners (as hereinafter defined), (c) if Mortgagor is a corporation, any of its shareholders, directors, principals, officers or employees, or (d) if Mortgagor is a limited liability company, any of its members (the Persons described in the foregoing clauses (a)-(d), as the case may be, are hereinafter referred to as the "Partners") to perform and observe the obligations contained in the Note, this Agreement, the Pledge Agreement Mortgage or any of the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against BorrowerMortgagor or the Partners, except that Lender Mortgagee may bring a foreclosure action, an action for specific performance performance, or any other appropriate action or proceeding (including, without limitation, an action to enable Lender and each Noteholder obtain a deficiency judgment) solely for the purpose of enabling Mortgagee to enforce and realize upon (i) Mortgagor's interest in the Mortgaged Property, (ii) the Rent to the extent (x) received by Mortgagor (or actually received by its interest under Partners) after the Note, this Agreement, the Pledge Agreement and the other Loan Documentsoccurrence of an Event of Default, or (y) distributed to Mortgagor (or its Partners, but only to the extent received by its Partners) during or with respect to any period for which Mortgagee did not receive a Manager Certification accurate in all material respects confirming and certifying that all Operating Expenses with respect to the CollateralMortgaged Property which had accrued as of the applicable date of such Manager Certification had been paid (or if same had not been paid, or that Manager had taken adequate reserves therefor) (all Rent covered by clauses (x) and (y) being hereinafter referred to as the "Recourse Distributions") and (iii) any other collateral given to Lender pursuant to Mortgagee under the Loan DocumentsDocuments (collectively, the "Default Collateral"); provided, however, that, except as specifically provided herein, that any judgment in any such action or proceeding shall be enforceable against Borrower Mortgagor and the Partners only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement, the Pledge Agreement and the other Loan Documents, agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against Borrower in any such action or proceeding under, or by reason of, or in connection with, the Note, this Agreement, the Pledge Agreement or the other Loan DocumentsDefault Collateral. The provisions of this Section shall not, however,
, (a) constitute a waiver, release impair the validity of the Debt evidenced by the Note or impairment in any way affect or impair the lien of any obligation evidenced this Mortgage or secured by any of the other Loan DocumentsDocuments or the right of Mortgagee to foreclose this Mortgage following the occurrence of an Event of Default; (b) impair the right of Lender Mortgagee to name Borrower Mortgagor as a party defendant in any action or suit for judicial foreclosure and sale under the Pledge Agreementthis Mortgage; (c) affect the validity or enforceability of or any Guaranty made in connection with the Loan Note, this Mortgage, or any of the rights and remedies other Loan Documents, or impair the right of Lender thereunderMortgagee to seek a personal judgment against the Indemnitor; (d) impair the right of Lender Mortgagee to obtain the appointment of a receiver; (e) intentionally omittedimpair the enforcement of the Assignment; (f) impair the right of Mortgagee to obtain Loss Proceeds due to Mortgagee pursuant to this Mortgage; (g) impair the right of Mortgagee to enforce the provisions of Sections 5.12, 12.01 or 16.01, inclusive of this Mortgage, even after repayment in full by Mortgagor of the Debt; (h) prevent or in any way hinder Mortgagee from exercising, or constitute a prohibition defense, or counterclaim, or other basis for relief in respect of the exercise of, any other remedy against Lender any or all of the collateral securing the Note as provided in the Loan Documents; or (i) impair the right of Mortgagee to sue for, seek or demand a deficiency judgment against Borrower in order to fully realize Mortgagor solely for the security granted by purpose of foreclosing the Pledge Agreement Mortgaged Property or to commence any other appropriate action part thereof, or proceeding in order for Lender to exercise its remedies against all of realizing upon the Default Collateral; or provided, however, that any such deficiency judgment referred to in this clause (gi) constitute a waiver of shall be enforceable against Mortgagor and the right of Lender Partners (but only to enforce the liability extent distributed to and obligation of Borrower, actually received by money judgment or otherwise, such Partner) only to the extent of any actual lossof the Default Collateral. The provisions of this Section 18.32 shall be inapplicable to Mortgagor if any proceeding, damageaction, costpetition or filing under the Federal Bankruptcy Reform Act of 1978, expenseas amended, liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor similar state or federal law now or hereafter in connection with the execution and delivery of the Loan Documents and/or the Loan;
(ii) the misappropriationeffect relating to bankruptcy, conversion reorganization or misapplication in contravention of the Loan Documents by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any funds of Borrower, Senior Mezzanine Borrower, Mortgage Borrower or Operating Company, including, without limitation, (A) any Revenues, (B) any Net Liquidation Proceeds or Insurance Proceeds, (C) any Awards received in connection with a Condemnation, (D) any Rents or security deposits (or any item of Revenue, from whatever source) following an Event of Defaultinsolvency, or (E) any distribution the arrangement or other payments made adjustment of debts, shall be filed by, consented to or acquiesced in connection with any part of the Collateral by or Senior Mezzanine Collateral;
(iii) the misappropriation, conversion or misapplication by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor of any security deposits or Rents paid more than one (1) month in advance;
(iv) any act of actual intentional physical waste by Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor;
(v) the breach of any representation, warranty, covenant or indemnification provision in the Environmental Indemnity Agreement concerning environmental laws, hazardous substances and asbestos and any indemnification of Lender with respect thereto in either document;
(vi) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary intentional Transfer as required by this Agreement, the Mortgage Loan Agreement or the Mortgages, as applicable;
(vii) any security deposits, advance deposits or any other deposits collected with respect to any of the Properties which are not delivered to Mortgage Lender upon a foreclosure of any of the Properties or action in lieu thereof, except to the extent any such security deposits were applied in accordance with the terms and conditions of any of the Leases prior to the occurrence of the Event of Default that gave rise to such foreclosure or action in lieu thereof;
(viii) in the event of:
(A) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (B) the filing of an involuntary petition against Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any Person in which Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of their respective Affiliates, agents or employees colludes with or such other PersonMortgagor, or Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company if Mortgagor shall institute any proceeding for its dissolution or any Guarantor soliciting or causing to be solicited petitioning creditors for any involuntary petition against Borrower, Operating Company or any Guarantor from any Person; (C) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it by any other Person, other than Lender, under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (D) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trusteeliquidation, or examiner for Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor or any of the Properties, the Collateral, the Senior Mezzanine Collateral or any portion thereof, other than at the request of Lender; or (E) Borrower, Mortgage Borrower, Senior Mezzanine Borrower, Operating Company or any Guarantor making shall make an assignment for the benefit of creditors (other than Lender), or admittingcreditors, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due;
(ix) if Borrower, Senior Mezzanine Borrower or Mortgage Borrower fails to maintain its status as a Special Purpose Entity or breaches any material representation or warranty set forth in Section 4.1.30 of this Agreement; and
(x) if Borrower, Mortgage Borrower, Senior Mezzanine Borrower or Operating Company fails to obtain Lender’s prior consent to any voluntary Indebtedness (other than (x) with respect to Mortgage Borrower, Permitted Indebtedness and (y) with respect to Operating Company, Permitted Indebtedness (Operating Company), as applicable) or voluntary Lien (other than Permitted Encumbrances) encumbering any which event Mortgagee shall have recourse against all of the Propertiesassets of Mortgagor including, Senior Mezzanine Collateral or Collateral as required by this Agreementwithout limitation, the Senior Mezzanine Loan Agreementany right, the Mortgage Loan Agreement, the Pledge Agreement or the Mortgages. Notwithstanding anything title and interest of Mortgagor in and to the contrary under this AgreementMortgaged Property, neither any present or future Affiliate partnership interests in Mortgagor and any Recourse Distributions received by the Partners of Borrower Mortgagor (but excluding the other than Guarantor, assets of such Partners to the extent provided under the Guaranty) nor any present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, partner, member, principal, participant or agent of or in any Borrower or of or in any person or entity that is or becomes an Affiliate of any Borrower shall Mortgagee would not have any personal liability, directly or indirectly, under or in connection with the Loan Documents. Neither the negative capital account of any Affiliate of Borrower in Borrower, or in any had recourse thereto other Affiliate of Borrower in any other Affiliate of Borrower, nor any obligation of any Affiliate of Borrower in any Borrower to restore a negative capital account or to contribute or loan capital to any Borrower or to any other Affiliate of Borrower shall at any time be deemed to be the property or an asset of any Borrower (or any other Affiliate of Borrower) and neither Lender nor its successors or assigns shall have any right to collect, enforce or proceed against any such negative capital account or obligation to restore, contribute or loan capital.
(b) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, 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 Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all collateral shall continue to secure all of the Indebtedness owing to Lender than in accordance with the Loan Documentsprovisions of this Section 18.32).
Appears in 1 contract
Sources: Mortgage, Security Agreement, Assignment of Rents and Fixture Filing (Motels of America Inc)